Delhi District Court
State vs Riyazuddin on 25 February, 2013
1
IN THE COURT OF SHRI M.K.NAGPAL
ASJ/SPECIAL JUDGE-NDPS/SOUTH & SOUTH-EAST
SAKET COURT COMPLEX, NEW DELHI
State Versus Riyazuddin
S/o Sh Rafiq Ahmed
R/o J-67, Abul Fazal Enclave
Okhla, Jamia Nagar
New Delhi
2. Dr. Shabana Talat
D/o Sh Qasim Hussain Zafari
R/o 66, Okhla Village,
New Delhi-110025
3. Dr. Huma Shamshi
D/o Bahar Alam Shamshi
R/o H-5, Batla House, Okhla,
New Delhi.
(Since Discharged)
SC No. : 119/06
FIR No. : 53/06
U/S : 304/313/314/34 IPC &
3/4/5 MTP Act
PS : Sarita Vihar
Date of institution : 03.07.2006
Date of reserving judgment : 19.02.2013
Date of pronouncement : 25.02.2013
Decision : Accused No. 1 Convicted
Accused No. 2 Acquitted
J U D G M E N T
This case pertains to the death of one Smt Sushmita wife of Sh Manoj Kumar, who is the complainant of this case, which allegedly was caused by the medical SC No. 119/06 State Vs Riyazuddin & Anr 2 negligence of two accused namely Riyazuddin and Dr. Shabana Talat facing trial herein and also one Dr. Huma Shamsi, who already stands discharged in this case.
2. The facts of the case, in brief, are that on receipt of one DD no. 26 dated 04.02.2006 of PS Sarita Vihar, PW7 HC Juginder Bhati and PW-13 HC Khalil Ahmed (Constable at that time) had reached at the address of Aaysha Clinic and Maternity Home being run from the premises at J-64/1, Abul Fazal Enclave, Jamia Nagar, New Delhi. They had found that the dead body of a lady was lying in the backside room of above nursing home, but no doctor or staff member of the nursing home was present there. However, the complainant/PW5 Sh Manoj Kumar and his brother Sh Premkant/PW1 were both found present there, but they had refused to make their statements at that time, as per the chargesheet.
3. It is the case of prosecution that on 05.02.2006, the complainant/PW5 had made his statement Ex. PW5/A before PW7 HC Juginder Bhati in which he had stated that he had taken his wife Sushmita (since deceased) to the above nursing home on 03.02.2006 as she was having some pain in her abdomen and she was examined by Dr. Riyazuddin Saifi and was admitted in the nursing home. On 04.02.2006, he had got done ultrasound of his wife from Shadab Ultrasound Centre, Okhla, New Delhi and on seeing the report he was told by the above doctor that his wife was having pregnancy of 3½ months, which was SC No. 119/06 State Vs Riyazuddin & Anr 3 required to be aborted to save life of his wife. The complainant/PW5 also stated in his above statement that his wife was taken to O.T. by the doctor and by that time two lady doctors were also present there and they had already obtained his signatures on three forms at the time of admission of his wife in the above nursing home. It was also stated by him that after taking his wife in O.T., the above doctor had asked him to bring Rs. 1600/- more as he had already deposited Rs. 1800/- at the time of admission of his wife and he had went to village Jasola, where he was residing, to bring the above amount. He had returned back to the above nursing home at about 8.00 p.m. with money, but on reaching there he did not find his wife or any doctor and he was told by one boy that his wife was already taken by above doctors to Lions Hospital, New Friends Colony. The complainant/PW5 had reached Lions Hospital on his cycle but after reaching there he had come to know from staff of the above hospital that his wife had been taken to the Jeevan Hospital but he did not even find his wife when he reached in Jeevan Hospital and ultimately he returned back to Aaysha Nursing Home.
4. It was also stated by the complainant/PW5 in his above statement that when he had reached back in the above nursing home, the above Dr. Riyazuddin and both the lady doctors had met him and had told him that his wife was well and some medicines had been given to her. However, when the complainant had insisted to see his SC No. 119/06 State Vs Riyazuddin & Anr 4 wife, the above three doctors had slipped away from there and when he alongwith his brother had entered inside, they had found his wife lying on a bed and on removing cloth from her body, she was found to be dead. His brother Premkant/PW1 had made a call to police and he had also stated specifically in his above statement that the death of his wife had taken place due to the negligence of above three doctors during the treatment of his wife and he can also identify both the above lady doctors.
5. On the basis of the above statement made by the complainant/PW5, PW7 HC Juginder Bhati had endorsed the rukka Ex. PW7/B thereon and the same had resulted into the registration of this case and investigation of this case was assigned to PW16 SI Lokender Singh.
6. On 06.02.2006, the above SI/IO had got conducted postmortem examination of the dead body of the deceased Sushmita and in the postmortem report Ex. PW2/A it was opined that her death was caused because of hemorrhagic shock due to perforation of uterus caused by application of irresponsible surgical intervention and no efforts has been made for resuscitation of patient and this was case of gross medical negligence. On 15.02.2006, the accused Riyazuddin was arrested in this case from his nursing home by the IO/PW16, on the basis of some secret information, and some registers and records from his nursing home and some other articles were also taken into possession. The names of the above SC No. 119/06 State Vs Riyazuddin & Anr 5 two lady doctors had came during the questioning of the accused Dr. Riyazuddin as Dr. Shabana Talat and Dr. Huma Shamsi and subsequently they both were also formally arrested in this case on 04.02.2006 as in the meanwhile they had been granted anticipatory bail by the court. During investigation, the IO/PW16 had also seized some other records and sought some information regarding the qualifications of the accused persons and after completing the requisite formalities, he had ultimately filed a chargesheet in this case against all the three accused persons for commission of the offences punishable U/S 304/313/314/34 of the Indian Penal Code, 1860 (hereinafter referred as IPC) and U/S 3/4/5 of the Medical Termination of Pregnancy Act, 1971 (hereinafter referred as MTP Act) as it was established during the investigation that the deceased had died due to the medical negligence on part of the above doctors and in the above operation, the pregnancy of about 22 weeks carried by the deceased had also been aborted, and further that the above doctors were neither competent to abort the same under the MTP Act nor the above nursing home was also a registered place or institute under the said Act.
7. The charge-sheet was filed before the court of Ld. M.M. concerned on 13.04.2006 and cognizance of the above offences was taken. Since the above offences were exclusively triable by a Court of Sessions, the matter was committed to the Sessions Court vide order dated SC No. 119/06 State Vs Riyazuddin & Anr 6 02.06.2006 of the Ld. M.M. concerned.
8. Since there was prima facie material available on record to show that the death of the deceased Sushmita was caused due to the above acts done by both the accused Riyazuddin and Shabana Talat and the said death did not amount to murder, a prime facie case for commission of the offence punishable U/S 304/34 IPC was found to be made out against both of them and further since the above death was caused while performing an abortion of the deceased and there was nothing to show on record that the said abortion was being performed in good faith to save the life of the deceased, a prime facie case for commission of an offence punishable U/S 314/34 IPC was also found to be made out against both the above accused in alternative and alternate charges for the said offences were directed to be framed against both of them vide order dated 23.04.2007. However, the third accused Dr. Huma Shamsi was directed to be discharged in this case as it was observed that there was no prima facie material on record to frame charges against her for any of the offences mentioned in the chargesheet. A formal charge for offences punishable U/S 304/34 IPC with alternate charge U/S 314/34 IPC against both the accused Riyazuddin and Shabana Talat was also framed on 08.05.2007.
9. The prosecution in support of its case has examined total 18 witnesses on record and their names SC No. 119/06 State Vs Riyazuddin & Anr 7 and the purpose of examination etc. is being stated herein below. (It is mentioned here that two witnesses namely Sh Raj and Dr. R.N. Baishya have inadvertently been given the same serial number 14 and hence, Dr. R.N. Baishya is being renumbered as PW14A and the documents proved by him are also being renumbered accordingly. Further, it is also mentioned that PW17 was examined on the request of the prosecution made after some additional charges were framed against the accused persons under the MTP Act). :-
10. PW1 Premkant Karn is the brother of the complainant and PW5 Sh Manoj Kumar Karn is the complainant himself and they both have broadly deposed on the above lines of the prosecution story regarding the taking of the deceased Sushmita to the above nursing home on 03.02.2006, her admission in the said clinic on that day and her death caused due to the above surgery for abortion undertaken in the said clinic. They both have identified the accused persons during their statements made in this court and their depositions will be discussed and appreciated in detail in the later part of this judgment.
11. PW2 Dr. Shalini Girdhar and PW3 Dr. R.K. Sharma of AIIMS Hospital had conducted the post-mortem examination of the dead body of the deceased Sushmita and had given their report Ex. PW2/A. SC No. 119/06 State Vs Riyazuddin & Anr 8
12. PW4 Sh Shakeel Ahmad is a technician of one Sahara Pathology Laboratory in the area of Jamia Nagar, Okhla, New Delhi and he had tested the blood sample of the deceased on 04.02.2006 vide report Ex. PW4/A.
13. PW6 Dr. M.P.Sharma is the pathologist of the above lab where the above blood sample of the deceased was tested vide the above report Ex. PW4/A, given under the signature of both PW4 and this witness.
14. PW7 HC Juginder Bhati & PW13 HC Khalil Ahmad (Constable at that time) were both posted at Shaheen Bagh, police post and had reached at the above nursing home on 04.02.2006 on receiving of the above DD No.26 regarding the death of the deceased at the above nursing home. They had found the complainant/PW5 and his brother/PW1 present there and made enquiries from them and had also made arrangements for sending the dead body of the deceased to AIIMS Hospital for post-mortem, which was got conducted subsequently. As per PW7, he had also recorded the statement of the complainant/PW5 Sh Manoj Kumar Ex.PW5/A in the morning of 05.02.2006 and had got this case registered after making his endorsement Ex. PW7/B thereon.
15. PW8 Dr. Shadab Mehmood is the owner of the Shadab Imaging and Diagnostic Centre, Jamia Nagar, New Delhi where the ultrasound of the lower abdomen of the deceased was conducted on 04.02.2006 vide report Ex.
SC No. 119/06 State Vs Riyazuddin & Anr
9
PW8/B given by this witness. He has stated that the
deceased was having a live foetus of 22 weeks at that time.
16. PW9 Dr. Gunjan Sabarwal and PW15 Dr. Sanjeev were both working in Jeevan Hospital/nursing home at the relevant time when on 04.02.2006 the deceased Sushmita was taken to the above hospital in almost collapsed/dead condition, as deposed by these witnesses. The deceased was first attended by PW9 and she had also then called PW15 to examine her and some efforts were made by both of them to revive the deceased, but with no result.
17. PW10 Ct. Dharmender had only taken the rukka of this case from PP Shaheen Bagh to PS Sarita Vihar on the directions of the initial IO/PW7 HC Juginder Bhati for registering of this case. He was also present when the site plan of the above nursing home was subsequently prepared by the IO/PW16 at the instance of the complainant/PW5.
18. PW11 HC Sube Singh had joined the investigation of this case with the IO/PW16 HC Lokender on 15.02.2006 and he is a witness of the arrest of the accused Riyazuddin from his above nursing home vide arrest memo Ex. PW11/A, his personal search memo Ex. PW11/B, his disclosure statement Ex. PW11/E and the seizure memo of some registers Ex. PW11/C and the pointing out of the said clinic by the above accused vide memo Ex. PW11/D. SC No. 119/06 State Vs Riyazuddin & Anr 10
19. PW12 Sh Devender Kumar is the concerned MM posted at Tihar Jail at the relevant time and he had conducted the TIP proceedings Ex. PW12/A of the accused Shabana Talat and Ex. PW12/D of the other accused Huma Shamshi (since discharged) on 05.04.2006 on the application Ex. PW12/B of the IO, vide which both the above accused had refused to join the proceedings.
20. PW14 Sh Raj was working as a compounder in the above Aaysha Clinic and Maternity Home at the relevant time and according to him, the above clinic was being run by one Dr. Yusuf Rehman and the accused/Dr. Shabana Talat only used to visit that clinic as per requirements and further that the accused Riyazuddin was only working as a senior compounder in the said clinic and not a doctor. He has also stated that on 03.02.2006, though, the deceased was brought in the above clinic and was examined by Dr. Yusuf Rehman and Dr. Shabana Talat, but she was not admitted there and she was again brought there by her husband on 04.02.2006 and was given some treatment and got subjected to ultrasound examination and since her husband/complainant wanted to abort her pregnancy, Dr. Yusuf Rehman had taken them to the Lions Hospital and then to the Jeevan Hospital for abortion and he (this witness) had also accompanied them. According to this witness, the above patient had collapsed and expired in the Jeevan Hospital and not in their nursing home and further that the accused Riyazuddin was not in the nursing home on the above SC No. 119/06 State Vs Riyazuddin & Anr 11 dates as he had already gone to Nainital in the morning of 03.02.2006.
21. PW14A Dr. R.N. Baishya, is the retired Secretary of the Delhi Medical Council and he has stated that on receipt of one letter dated 04.08.2006 Ex. PW14/A from the Medical Council of India, which had forwarded to them one letter Ex. PW14/B of the IO/PW16, they had sent a querywise reply Ex. PW14/C to the same (the above documents have been now renumbered as Ex. PW14A/A, PW14A/B, PW14A/C respectively).
22. PW16 SI Lokender Singh is the main investigating officer of this case and had conducted the entire investigation of this case, prepared various documents and also subsequently arrested the accused persons, as stated above. He had also seized some records and conducted some investigation regarding the medical qualifications of the accused persons, got the above two female accused subjected to TIP proceedings and subsequently prepared the charge sheet, after completing the formalities of the investigation of this case.
23. It is necessary to mention here that when the matter was fixed for recording of the statements U/S 313 Cr.P.C of the accused persons, after the conclusion of the prosecution evidence, it was observed that though the chargesheet against the accused persons was also SC No. 119/06 State Vs Riyazuddin & Anr 12 filed for offences U/S 3/4/5 of the MTP Act, but the above order dated 23.04.2007 of this court was silent with regard to the above offences. After seeking some clarifications on this aspect and after hearing the submissions of both the sides, the above charges framed against the above two accused were subsequently directed to be amended/modified vide order dated 30.11.2011 of this court and besides the above charges, charges for the offences U/S 3 & 4 punishable U/S 5 of the MTP Act against the accused Riyazuddin and charge for the offence U/S 3 punishable U/S 5 of the said Act were also directed to be framed against the accused persons as it was clear from the chargesheet that none of the accused persons was registered as a medical practitioner under the MTP Act nor the above Aaysha Clinic and Maternity Home being run by the accused Riyazuddin was an authorized or approved place under the said Act for the termination of the pregnancies. Therefore, additional charges for the above offences under the MTP Act were also framed against both the above accused on 30.11.2011 itself.
24. After the above modification/amendment of the charges, an opportunity was given to both the sides to examine, cross examine or call/summon any witness with reference to the above amendment/modification of charges and one Dr.P.Prasanaraj was also subsequently examined by the prosecution on record as PW17 and he is a witness from the Medical Council of India and was summoned only SC No. 119/06 State Vs Riyazuddin & Anr 13 for proving on record one letter Ex. PW17/A (already available in the judicial file and already Ex. PW14/A), vide which the above letter Ex. PW14/B sent by the IO/PW16 seeking some clarifications regarding the qualifications etc of the accused was forwarded by the Medical Council of India to the Delhi Medical Council.
25. After conclusion of the evidence of the prosecution, the entire incriminating evidence brought on record was put to the accused persons in their statements recorded U/S 313 Cr.P.C. and the same was denied by them either to be incorrect or not in their knowledge. Both the accused persons have claimed this case to be false and further that they have been falsely implicated in this case. It was stated by the accused Riyazuddin that the above Aaysha Clinic was actually being run by one Dr. Yusuf Rehman and he was only working as a compounder in the above clinic and it was also claimed by him that he was not even present in the said clinic at the time of alleged incident as he was in Ram Nagar in Uttrakhand. The accused Shabana Talat has claimed that she had never dealt with any patient named Sushmita and she had no connection with the above Aaysha Clinic and neither she had given any prescription, treatment, advice or recommendation for medical diagnostic of the deceased Sushmita nor she had performed any surgery of the deceased. She has further claimed that she is a qualified medical practitioner as she is having a BUMS degree from Hamdard Medical SC No. 119/06 State Vs Riyazuddin & Anr 14 College, which is under the Delhi University. Both the accused persons have also claimed that they have been wrongly identified by the witnesses as accused and their signatures were taken on many blank and other documents by the police.
26. Though, both the accused persons had also chosen to lead evidence in their defence, but subsequently the accused Shabana Talat has not examined any witness in her defence and only one witness was examined by the accused Riyazuddin in his defence.
27. DW1 Sh Shagir Ahmad has claimed that he had visited the above Aaysha Clinic being run by one doctor Yusuf Rehman and the accused Riyazuddin was only working as a compounder in the said clinic. He has also claimed that he had visited the above clinic for taking some treatment on one day when he had found a big crowd and noise in the said clinic and he was told that one patient was got admitted by Dr. Yusuf Rehman in some other nursing home and the above crowd/persons were annoyed with the same. He has also stated that accused Riyazuddin was not present in the clinic at that time and it was between 7.00 PM to 8.00 PM in the month of February, 2006.
28. It is also necessary to mention here that when the final arguments in this case were addressed, Ld Addl PP for the State has referred to some contents of the SC No. 119/06 State Vs Riyazuddin & Anr 15 anticipatory bail application dated 15.07.2006 moved on behalf of accused Shabana Talat and since the same were considered to be incriminating against the said accused, one supplementary statement of accused Shabana Talat U/S 313 Cr.P.C. was also recorded on 19.02.2013 and it was stated by her in her above statement that she had never approached or briefed her counsel about the above bail application and it was her father who had engaged the counsel and had obtained her signatures on one vakalatnama. Further, copies of the common order dated 11.01.2013 of the Hon'ble High Court passed in Crl. Rev. Petitions No. 724/2007 and 592/2007 filed by the accused Riyazuddin and Dr. Shabana Talat were also received in this court thereafter, from which it was revealed that the above petitions were filed by the accused persons against the charges framed against them on 08.05.2007, which were ultimately dismissed vide the said order, due to non-prosecution and also being devoid of merits.
29. I have heard the arguments advanced by Sh M.Z.Khan, Ld Addl PP for the State, Sh Islam Khan, Ld counsel for the accused Riyazuddin and Sh L.K. Upadhaya, Ld counsel for the accused Dr. Shabana Talat and have also gone through the entire case record, including the written submissions filed on behalf of the accused Riyazuddin.
30. PW1 Sh Prempal Karn and PW5/complainant Sh Manoj Kumar are the two material witnesses of the SC No. 119/06 State Vs Riyazuddin & Anr 16 prosecution story who have deposed regarding the taking of the deceased Sushmita to the above Aaysha Clinic and her admission and treatment given in the said clinic. PW1 has stated on record that on 03.02.2006, his bhabhi/sister-in-law Sushmita Karn was feeling pain in her stomach and he and his brother Manoj Kumar had taken his bhabhi to a clinic, the name of which he does not now remember, and on the advise of the above clinic they had gone to Aaysha Clinic, Abul Fajal Enclave, and there the accused Riyazuddin had met them with three other ladies who were also working in the said clinic, may be nurse or doctors. Then, while referring to the above Riyazuddin, PW1 has also stated that he admitted his bhabhi in the clinic and then this witness claims that he had come back to his house in Jasola while his brother Manoj remained in the clinic.
31. He has also stated on record that on 04.02.2006, his brother Manoj had telephoned him and told that doctor had sent his brother Manoj to bring the money and when his brother came back to clinic, he had found that neither his wife Sushmita nor any doctor was available in the clinic. He had asked from his brother about Sushmita and then his brother had told him that Sushmita is stated to be in Lions Hospital and then his brother had gone to Lions Hospital and was informed that Sushmita was taken to Jeevan Hospital and he was further told by his brother that when his brother had reached Jeevan Hospital, his wife was even not found in the said SC No. 119/06 State Vs Riyazuddin & Anr 17 hospital.
32. It is also stated by PW1 on record that then he had also reached the Aaysha Clinic where doctor Riyazuddin had met him and told that Sushmita was being treated by the doctors of Jeevan Hospital and when this witness had asked Riyazuddin as to where she was being treated by the Jeevan Hospital doctors, the accused Riyazuddin did not show him Sushmita. He has further stated that on being compelled, the accused Riyazuddin had taken him to the other-side gate of the clinic where a vehicle was parked, which was locked and the lock of the vehicle was opened and the accused Riyazuddin had told that your patient was in the vehicle. He also states that when he had checked his sister-in-law, he had felt that her body was cold and then he claims to have come back to the front gate of the clinic and made a call to the police at 100 number and has stated that the above incident is of 04.02.2006. He has also stated that when he had again gone to the above clinic, he had found that she was shifted from the vehicle to the bed of the clinic and after sometime the said vehicle was found disappeared and he had also found blood lying on the floor when his sister-in-law was shifted from the vehicle to the bed.
33. He has further stated on record that after 25/30 minutes of his calling to the police, the police had arrived at the spot and in the meantime, Dr. SC No. 119/06 State Vs Riyazuddin & Anr 18 Riyazuddin and three ladies had fled away from the clinic and his brother Manoj was also present there and the police had made enquiries, seized some documents from there and also recorded their statements and then the dead body of his sister-in-law was brought to the police-post and thereafter taken to AIIMS Hospital for postmortem examination, which was done on 06.02.2006. He has also identified the dead body of his sister-in- law vide statement Ex. PW1/A and has further identified the accused Riyazuddin and Shabana Talat while saying that they both are the doctors/persons who had met him in the Aaysha Clinic on that day.
34. During his cross examination, he was confronted with his statement U/S 161 Cr.P.C. Ex. PW1/DA on some of the above aspects like that he had stated to the police that when he met the accused Riyazuddin and asked about his bhabhi, the accused Riyazuddin had taken him and his brother to the other side of the clinic; that the accused Riyazuddin had told them that his sister-in-law was being treated by the doctors of Jeevan Hospital and was in the above vehicle parked on that side; that he had told the police that the dead body of her bhabhi had already become cold; that the dead body was shifted from the vehicle to the clinic and he had seen blood oozing out; that the above vehicle had already gone from that place when he had again reached there etc; that he had informed the police that Riyazuddin and three ladies had fled away from the clinic, as these facts were not found SC No. 119/06 State Vs Riyazuddin & Anr 19 to be stated in his statement. He has also reiterated his previous depositions that the statements of him and his brother Manoj Kumar were recorded on 04.02.2006 and not on 05.02.2006 and has further stated that since he did not know the accused Shabana Talat at that time, her name was not disclosed by him to the police.
35. PW5/complainant Sh Manoj Kumar in his statement has stated on record that on 03.02.2006, his wife was having pain in her abdomen and he had taken his wife to Aaysha Clinic of Dr. Riyazuddin situated at Abul Fajal Enclave and has identified the above accused. He has also stated that the accused Riyazuddin had checked his wife and told him to deposit an amount of Rs. 1800/- and his wife was admitted in the clinic, but she had got no relief till 04.02.2006 despite the treatment given by the accused Riyazuddin. He has also stated that then he had got conducted ultrasound of his wife and thereafter the accused Riyazuddin had advised him to get abortion of his wife, who was pregnant for the last about 2½/3 months, otherwise the life of his wife would be in danger. As per him, his brother was also present at that time.
36. It is also stated by him on record that his wife was taken to operation theatre and at that time he was told to bring a further amount of Rs. 1600/- and the accused Riyazuddin and three ladies doctors were present at that time, one of which according to him was the SC No. 119/06 State Vs Riyazuddin & Anr 20 accused Shabana Talat, who has been identified by him as such. He further states that when he had reached back in the clinic with the above money, nobody was present in the clinic and he was informed by one sweeper present there that his wife had been taken to Lions Hospital (wrongly typed as Lines Hospital) and they had rushed to Lions Hospital, but his wife was not there. He claims that then they had rushed to Jeevan Hospital but since his wife was also not found there, they had again returned back to Aaysha Clinic and had found the accused Riyazuddin and the three lady doctors present there and his wife was lying dead on the back seat of the Scorpio vehicle. He was told that his wife was alright and when he and his brother had pulled the back door of the Scorpio, they had found that his wife was dead and then he claims to have made a call to the police at 100 number and it is also stated by him that after removing the dead body from the vehicle in a room of the above clinic, all the above persons/doctors, including the accused Riyazuddin and Shabana Talat, as well as the other staff members of the clinic had fled away in the above Scorpio vehicle. A PCR van had reached at the spot and he claims that his statement Ex. PW5/A was recorded there and thereafter the post-mortem of his wife was got conducted and he had identified the dead body of his wife vide statement Ex. PW5/B. He also claims to have shown the above nursing home to the police and has further stated specifically that there was no provision in the hospital.
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37. During his cross examination, he has also
stated that he had informed the police that the dead body of his wife was in the Scorpio vehicle and on opening the door thereof he had found his wife dead, but these facts were not recorded by the police in his statement. He was also confronted with his above previous statement Ex. PW5/A on the aspect that three lady doctors and one male doctor were present in the clinic as previously he had stated only about the presence of one male and two lady doctors. However, he has stated it specifically that his report was lodged with the police during the night of 04.02.2006 vide the above statement Ex. PW5/A. He has also stated that doctor Riyazuddin and Shabana Talat were the main doctors but there was one more male doctor present in the clinic alongwith doctor Riyazuddin, but he has not been able to say if his name was doctor Yusuf Rehman. However, he has specifically denied the suggestions given to him that the accused Riyazuddin was working only as a compounder, alongwith one Raj in the said clinic. Though he has also not been able to tell if the entire staff of the clinic was working under Dr. Yusuf Rehman but he has also stated that he does not know any doctor named Yusuf Rehman Saifi. He has also denied the suggestion that they were forcibly taking the dead body of his wife from the above clinic being run by Dr. Yusuf Rehman and since they were not permitted to do the same, they had lodged the above false complaint.
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38. During the course of cross examination
conducted on behalf of accused Shanana Talat, he has also been confronted with his one other statement Ex. PW5/DB pertaining to the identity of the accused Huma Shamshi (since discharged) and Shabana Talat as the names, parentage and addresses etc of these two accused were found recorded in the said statement whereas the witness has claimed that he was not aware about the same and he did not even know the above two accused earlier and had come to know their names only when the case was filed in the court and he came to the court to attend the proceedings. He was also confronted with the above statement Ex. PW5/DB dated 08.04.2006 on another material aspect as according to this witness, he had not seen the above two female accused in the PS on 08.02.2006 though as per his above statement he had seen and identified the above two accused in the PS that day.
39. From the above depositions made by the above two material witnesses of the prosecution, their appear to be some contradiction in their statements as to whether PW1 was present with his brother/PW5 Manoj Kumar or not on 03.02.2006 when the deceased Sushmita was taken to the above Aaysha Clinic and also on 04.02.2006 at the time when she was taken to the operation theatre for abortion. It is so because though PW1 has specifically made a claim that he was with his brother and bhabhi when she was taken there on 03.02.2006, but the complainant/PW5 himself has not made any such claim.
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Further, though according to the complainant/PW5 his
brother was also with him when his wife was taken to operation theatre and his statement also suggests that they both had gone to make arrangement for the above money and then to the Lions and Jeevan Hospitals in search of his wife Sushmita, but PW1 has claimed that he was only told telephonically about the above requirement of money, the going of his brother for making arrangement for the same and also in search of the deceased Sushmita to above hospitals and he further claims that he had reached the above Aaysha Clinic only after his brother had returned back there from the Lions and Jeevan Hospital.
40. However, as far as the taking of the deceased to the above clinic for treatment, her admission in the said clinic and also the death of the deceased Sushmita because of the treatment given in the said clinic are concerned, both the above witnesses have consistently and corroboratively deposed on these aspects. They both have specifically stated that the deceased Sushmita was taken in connection with her treatment to the above Aaysha Clinic on 03.02.2006 and she remained hospitalized there during the night of 03.02.2006. Though the complainant/PW5 did not find corroboration from the presence of his brother/PW1 on the aspect that on 04.02.2006 his wife was not found in the above clinic when he had reached back in the above clinic after making the arrangement of the above amount, but there is SC No. 119/06 State Vs Riyazuddin & Anr 24 no reason to disbelieve or discard his statement on the above aspect and his above claim of taking of the deceased from the Aaysha Clinic to the above Jeevan Hospital is also found corroborated from some other oral and documentary evidence led on record, to be discussed in the later part of this judgement. However, PW1 as well as the complainant/PW5 were both present in the above clinic when the dead body of the deceased Sushmita was found lying in the above vehicle parked on the back side door of the said clinic.
41. They both have specifically stated that the dead body of the deceased was lying in the above vehicle, which was stated by the complainant/PW5 to be a Scorpio vehicle, and it is only after their insistence that the accused Riyazuddin had taken them to the above vehicle. They both have also specifically deposed that Sushmita was already dead by the time they had seen lying her in the above vehicle and the dead body was also subsequently shifted from the vehicle to a bed of the above clinic. They both have also identified the accused Riyazuddin to be the same Dr. Riyazuddin who was running the above clinic as per them and who had given treatment to Sushmita in the said clinic, which had subsequently resulted into her death.
42. Ld defence counsels have also referred to some inconsistencies and contradictions in the statements of PW1 and the complainant/PW5, either inter-se or with SC No. 119/06 State Vs Riyazuddin & Anr 25 reference to the contents of the FIR, on certain aspects, like whether there were two or three lady doctors present in the above clinic on 04.02.2006, whether they had seen the dead body of the deceased lying in a vehicle and who had made the call to the police, i.e. PW1 or PW5 etc, to raise the argument that these witnesses should be disbelieved and the accused persons should be acquitted giving benefit of doubt. However, the contradictions and inconsistencies being pointed out by Ld defence counsels are held to be not on material aspects and such contradictions and inconsistencies are bound to occur in the depositions of two different witnesses deposing about a particular incident after a long gap of time between the date of incident and their depositions and further because of the different levels of understanding and memory of the human beings.
43. As stated above, the depositions made by the above two material witnesses have been found to be consistent and corroborative on the aspects that the deceased was taken by PW5/complainant to the above nursing home being run by the accused Riyazuddin, she was admitted there and some operation or surgery had also been performed there for the abortion of her pregnancy in the said nursing home by the accused Riyazuddin, with the assistance of some other doctors/staff, which had resulted into the death of the deceased. The alleged contradictions and inconsistencies SC No. 119/06 State Vs Riyazuddin & Anr 26 on the aspects as to who had made the call to the police, whether they had seen two or three lady doctors with the accused Riyazuddin or whether or not they had earlier seen the dead body in the above vehicle, don't affect the prosecution case as the same do not in any way make the involvement of the accused Riyazuddin in the commission of the above offences or the presence of the dead body of the deceased in the above clinic, where it was seen by the witnesses, to be doubtful. The propositions of law laid down in judgements Kanbi Nanji Virji & Ors. Vs. State of Gujarat 1970 CAR 1 (SC), Sudhir Kumar Vs. State 1969 Vol. V DLT 459 and Dr. Sunil Kumar Sambhudayal Gupta & Ors. Vs. State of Maharashtra 2011 Crl. L.J.705 (SC) being referred to by Ld counsel for the accused Riyazuddin are found to be not applicable in the instant case, though the correctness thereof can never be doubted. No two views regarding the involvement of the accused Riyazuddin in the above surgical intervention resulting into the death of the deceased Sushmita are possible in this case, though the involvement of the other accused Shabana Talat is doubtful and will be discussed in the later part of this judgment.
44. Though PW1 is silent about the pregnancy of the deceased Sushmita, but he has stated that she was taken to the above clinic as she was feeling pain in her stomach. Even the complainant/PW5 talks about pain in the stomach of his wife Sushmita and he has also stated SC No. 119/06 State Vs Riyazuddin & Anr 27 it specifically that though his wife remained admitted in the above clinic till 04.02.2006 but she did not get any relief from pain despite the treatment given by the accused Riyazuddin and he had also got conducted an ultrasound of his wife Sushmita on 04.02.2006 and thereafter the accused Riyazuddin had advised to get the abortion of his wife who was pregnant for the last about 2½/3 months. His depositions regarding the pregnancy of his wife are also corroborated by the testimony of PW8 Dr. Shadab Mehmood and the ultrasound report Ex. PW8/B given by him, after the above examination, and as per the above said report and the depositions made by this witness, a single live foetus of 22 weeks was seen in the uterus of the deceased, alongwith a foley's catheter. Hence, there is no doubt left to this court that the deceased was taken to the above clinic in connection with the abdominal pain which she had felt because of the above pregnancy.
45. As stated above, both PW1 and PW5/complainant have specifically stated on record that the accused Riyazuddin was running the above clinic and it is this accused who had admitted the deceased in the clinic and had also given treatment to her. Even according to PW8 Dr. Shadab Mahmood, the above ultrasound examination of the lower abdomen of the patient Sushmita was prescribed and referred to him on 04.02.2006 by Dr. Riyazuddin of Aaysha Medical Centre (wrongly typed as Asha Medical Centre in his statement) and Dr. Riyazuddin had also SC No. 119/06 State Vs Riyazuddin & Anr 28 requested for a discount of Rs. 150/- vide his endorsement made in the reference slip, which has been brought in the evidence as Ex. PW8/A. The above reference slip is in a printed format and is in the name of the Shadab Medicines and Diagnostic Centre itself and PW8 has also clarified on record that as per the practice their printed formats/reference slips are kept available/distributed to various doctors in the area and reference is made as per the practice on these printed slips only. He has also identified the endorsement made by Dr. Riyazuddin for giving the discount of Rs. 150/- on the above reference slip Ex. PW8/A.
46. No suggestion at all has been given to this witness that the accused Riyazuddin present in the court is not Dr. Riyazuddin who had referred the above patient for an ultrasound examination in the above Diagnostic Centre of PW8 or that the accused Riyazuddin present in the court was only working as a compounder in the Aaysha Clinic and the suggestions which were given to the witness/PW8 were only that Dr. Riyazuddin had not requested for a discount of Rs. 150/- in the bill or that he had not sent any reference slip or no report of ultrasound was sent by this witness to the above doctor. Hence, the depositions made by PW8 and the above documents proved by him not only corroborate the prosecution case on the aspect that the deceased Sushmita was admitted in the above Clinic in connection with her treatment of abdominal pain caused by her SC No. 119/06 State Vs Riyazuddin & Anr 29 pregnancy, but the same also corroborate the depositions of PW1 and the complainant/PW5 that the above Aaysha Clinic was being run by accused Riyazuddin and the above ultrasound examination was also advised by this accused.
47. Besides the above, there is also some other evidence on record in the form of depositions made by PW4 Sh Shakeel Ahmad and PW6 Dr. M.P.Sharma of Sahara Pathology Lab to corroborate the above evidence of the prosecution as the blood sample of the deceased was taken for testing in the above laboratory and tested there, on the reference of the accused Riyazuddin. PW4 is the concerned technician who had tested the above blood and as per him the patient was referred by Dr. Riyazuddin and blood sample was collected and the report Ex. PW4/A was prepared, which is countersigned by this witness. PW6 Dr. M.P.Sharma is the concerned pathologist who was running the above lab and he has also stated that the deceased Sushmita was sent to his laboratory by Dr. Riyazuddin for conduction of her blood sugar test and the same was clinically tested under his supervision by PW4 and the report Ex. PW4/A was prepared, which was given under his signatures.
48. To none of these two witnesses also, it was suggested by Ld counsel for the accused Riyazuddin that the accused Riyazuddin present in the court and facing trial herein is not the same Dr. Riyazuddin who had referred the above patient for blood testing to the SC No. 119/06 State Vs Riyazuddin & Anr 30 above lab on 04.02.2006 and rather PW6 Dr. M.P.Sharma has also stated specifically that he knew the accused Riyazuddin as they both were frequently meeting each other. Nothing material could be extracted out from these two witnesses in their cross examinations to prove or even to make doubtful that it was not the accused Riyazuddin who had referred the deceased Sushmita to the above lab for blood testing or that the accused Riyazuddin or Dr. Riyazuddin are in-fact two different persons.
49. Besides the above, the depositions made by PW9 Dr. Gunjan Sabarwal and PW15 Dr. Sanjeev of Jeevan Hospital also corroborate the other oral and documentary evidence led by the prosecution on record regarding the taking of the deceased Sushmita by Dr. Riyazuddin to Jeevan Hospital in a very pitiable condition. PW9 has stated that on 04.02.2006, sometime during the night, one lady named Sushmita was brought in their hospital by a doctor, whose name he cannot now tell, and the husband of the lady had not accompanied her. She has also stated that the patient was pulse-less, BP-less and in a pale condition and in-fact, she was brought dead in their hospital. Firstly, she herself had examined the patient and then she had called Dr. Sanjeev who was on duty in the ICU and they had tried their basic resuscitation, but the patient could not be revived. However, she has not been able to identify the accused Riyazuddin as the above doctor who had accompanied the SC No. 119/06 State Vs Riyazuddin & Anr 31 patient to their hospital on that day.
50. She was also cross examined at length by Ld Addl PP for the State, after she was got declared hostile, but even during her cross examination she has not identified the accused Riyazuddin to be the same doctor accompanying the patient on that day and she has also denied the suggestions given to her that she was intentionally not doing so. However, she has stated it to be correct that the patient was brought to their hospital at about 8.30 PM; that she had told to the police in her statement made in this regard that the doctor accompanying the patient had told that he was the CMO and was running Aaysha Clinic and Maternity Home at Sarita Vihar and is having a three bed hospital and that the above doctor had told to her that the husband of the above lady patient had gone to Noida to bring some money. However, she was not even able to remember that the name of the above doctor was Riyazuddin.
51. In his cross examination by Ld. defence counsel, she has also stated that catheter was inserted in the labour room, but she do not remember that whether there was any bleeding from the private part of the lady when catheter was inserted. She has also stated further that she cannot say if the name of the doctor who had brought the patient was Dr. Yusuf Rehman and she had seen only one doctor accompanying the lady and none else and she has also identified one slip Ex. PW9/DA of their SC No. 119/06 State Vs Riyazuddin & Anr 32 hospital, which is a photocopy of one cash bill of medicines dated 04.02.2006 issued at about 8.50 PM and is in the name of the deceased Sushmita and contains some medicine codes and the prices thereof, but has also stated further that she will have to check up the hospital records to relate the medicines as per the given codes. She has also stated further in his cross examination that the patient had reached in the hospital in a collapsed condition and her basic treatment was started immediately and that is why the above medicines were administered, but the patient was not admitted in their hospital.
52. PW15 Dr. Sanjeev of Jeevan Hospital has also stated that he was present in the ICU of the said hospital being In-charge thereof when on 04.02.2006 he was called by Dr. Gunjan/PW9 in the emergency ward to see one patient lying on the bed, whose name was subsequently revealed as Sushmita. On examination of the patient, he had found that the pulse, BP etc of the patient were not recordable and the pupils were found dilated and the patient had become absolutely pale and died because of excessive bleeding. He has further stated that the patient was found bleeding inter- vaginally and she bled so much that the blood coming out of her vagina was of the colour of plasma which generally occurs when almost all the blood had oozed out of the body and he had told Dr. Gunjan Sabarwal that the patient had already expired. He has further stated it SC No. 119/06 State Vs Riyazuddin & Anr 33 in clear terms that the accused Dr. Riyazuddin was also present outside the door of the emergency ward and the patient was brought to their hospital by him and when they had enquired from the accused about the attendants/relatives of the patient, he had told that the husband of the patient had gone to bring some money and will arrive there shortly. He has also stated that Dr. Gunjan Sabarwal had told him that the above doctor accompanying the patient was not sounding to be a qualified doctor and when they had talked to the accused Riyazuddin regarding his qualifications and clinic details, he had created a seen there.
53. In his cross examination, he has expressed his inability to state if the above patient was already admitted in their hospital or not and has also stated that though in routine an admission card is prepared in this regard, but in case of emergency the same is never a priority. He has also stated that he cannot say what treatment had been given to the patient by Dr. Gunjan, but he had not given any such treatment and being a medical expert he can also say that the patient did not require any treatment at the time of examination by him as by that time she was already dead. He has also admitted that the above document Ex. PW9/DA is pertaining to their nursing home, but he has also not been able to tell the codes of medicines mentioned therein. He has also denied a suggestion that the above patient was not brought to the clinic by the accused SC No. 119/06 State Vs Riyazuddin & Anr 34 Riyazuddin or that she was in-fact brought by one Dr. Yusuf Rehman or that the accused Riyazuddin was only working as a compounder in the Aaysha Clinic or that the husband of the patient was also present in the clinic at that time.
54. The above depositions made by these two independent witnesses from Jeevan Hospital clearly show that the deceased was taken to Jeevan Hospital in almost a dead/collapsed condition and the testimony of PW15 also proves that it was the accused Riyazuddin only who had taken the deceased to the above hospital at that time, after her condition might have deteriorated due to the treatment given to the patient in his clinic. The above two witnesses or even the above witnesses from Sahara Pathology Lab and Shadab Imaging have no reason to depose against the accused Riyazuddin as PW9 and PW15 were not even known to the above accused and the above other witnesses from the above laboratories were though known to the accused, but could never have deposed falsely against him and rather they were the well- wishers of the accused as they were getting business from the accused. Hence, the above evidence brought on record by the prosecution is sufficient to establish that it is the accused Riyazuddin only who was in-fact running the above said clinic and nursing home, where the deceased Sushmita was got admitted by her husband and was subjected to some surgery for abortion of her pregnancy, which ultimately resulted into her untimely SC No. 119/06 State Vs Riyazuddin & Anr 35 death.
55. Besides the above, there is some other evidence also on record to corroborate the above case of the prosecution on this aspect. During the investigation of the case, the IO/PW16 had taken some photographs Ex. PW16/B1 to PW16/B5 and Ex. PW14/DA of the above clinic and the same stand duly proved on record. In the photograph Ex. PW14/DA, the name of Dr. Riyazuddin is appearing, alongwith the name of Dr. M.A.Javed, on the panel of the doctors of the above clinic as mentioned on the board of the above clinic. Nowhere to any of the above witnesses it has been suggested that the above Dr. Riyazuddin shown/named in the above photograph is some other person and the accused Riyazuddin is some other person who was only working as a compounder in the above clinic. The name of Dr. Riyazuddin is also found to be written on the top of the above names of panel doctors shown in the above photograph. Though it has been suggested to and also stated it to be correct by one other witness named Sh Raj/PW14 that the above photograph is not of the above clinic being run from the premises of J-64/1, Abul Fazal Enclave, Jamia Nagar, New Delhi, but the same is of some other clinic being run in the same name at Sarita Vihar, but the above depositions made by PW14 are liable to be discarded as he being an employee of the same clinic appears to have intentionally made the above depositions in an attempt to save the accused Riyazuddin from this case and the SC No. 119/06 State Vs Riyazuddin & Anr 36 depositions of this witness will be discussed and appreciated subsequently in this judgement.
56. It cannot be ignored that the above photograph was taken by the IO/PW16 SI Lokender himself and he has also filed on record the negatives thereof and it could not be extracted out from this witness that the above photograph Ex. PW14/DA did not pertain to the above clinic at Abul Fazal Enclave where the deceased was admitted for abortion. Besides the above, the IO/PW16 has also seized some other record of the above clinic during investigation vide seizure memo Ex. PW11/C and it consists of 4 registers of the clinic exhibited as P1 to P4 during evidence and also one iron bed, mattress and two IV stands exhibited as Ex. P5 to P8 and these documents and articles also corroborate the prosecution story to the extent that the deceased Sushmita was admitted in the above clinic as an indoor patient and the provisions for admission were existing in the said nursing home for indoor treatment and even in the photographs Ex. PW16/B3 to Ex. PW6/B5 some beds have been shown lying in the above clinic, which clearly show that the same was not simply a clinic but also a nursing home where patients were admitted in connection with the treatment. The register Ex. P4 shows the name of the patient Sushmita as an indoor patient admitted in the said hospital and further the register Ex. P3 though pertains to a period much prior to the date of incident, but the name of Dr. Riyazuddin is appearing against the SC No. 119/06 State Vs Riyazuddin & Anr 37 names of the patients attended by him and this also corroborates the prosecution case to the extent that Dr. Riyazuddin was in-fact either running the above clinic himself or sitting in the said clinic as a doctor. Though the Ld defence counsels have argued that the entries of the above registers have not been proved to be in the handwriting of the accused Riyazuddin or any other official of the above clinic and hence cannot be read in evidence, but it cannot be ignored that that registers have been seized from the clinic itself by the IO/PW16 and there is no denial in evidence to the exhibition of the above registers of the contents of the said registers from the side of the accused persons. Moreover, these registers provide only an additional support to the prosecution case to establish the identity of the accused Riyazuddin as an offender, which otherwise also stands established on record.
57. Therefore, the evidence led by the prosecution on record, as discussed above, leaves no room for any doubt to this court that it was the accused Riyazuddin to whom the deceased Sushmita was taken for treatment of her abdominal pain and it is he only who had attended and admitted the above patient and had performed some surgery in his above clinic for the abortion of her pregnancy. He has not only been identified by both the relatives of the deceased, i.e. PW1 and PW5/complainant, but also by PW15 Dr. Sanjeev. Even the depositions made by PW4, PW6 and PW8 of the Sahara Pathology Lab and SC No. 119/06 State Vs Riyazuddin & Anr 38 Shadab Imaging corroborate the other evidence led on record in establishing the identity of the above accused Riyazuddin running the above Aaysha Clinic. Moreover, his name was written in the statement Ex. PW5/A of the complainant himself which is the basis of this FIR.
58. Ld defence counsels have assailed the prosecution evidence on different grounds and one of these grounds is that there is a material contradiction in the prosecution story as to when the above statement of the complainant was recorded because according to PW1 and the complainant/PW5 himself, the same was recorded on 04.02.2006 whereas according to the IO/PW16 and PW7 HC Juginder Bhati, it was recorded in the morning of 05.02.2006 as PW1 and the complainant/PW5 had both refused to give their statements on 04.02.2006, though as per the above two public witnesses, they had made their statements only on 04.02.2006. It has also been pointed out that there is some overwriting on the date of sending of the tehrir/rukka Ex. PW17/B endorsed on the above statement.
59. As far as the date of recording of the above statement Ex. PW5/A of the complainant is concerned, it appears to the court that he had made the same on the same day, i.e. 04.02.2006, when his wife had expired. He has also stated that he had lodged the above report Ex. PW5/A in the police station in the night time of 04.02.2006. Since the incident had taken late in the SC No. 119/06 State Vs Riyazuddin & Anr 39 evening of 04.02.2006, his statement should only have been remanded in the night of 04.02.2006 and 05.02.2006 and he cannot be made to suffer simply because it was actually reduced into writing and got signed from him by the IO/PW16 only in the morning of 05.02.2006 as it was the fault of the IO/PW16 and he should have promptly reduced the same in writing. The overwriting in the date of endorsement of the tehrir also appears to be because of some mistake as the date had changed from 04.02.2006 to 05.02.2006 during the night and the case of the complainant cannot also be permitted to be thrown out simply because of some mistake, lapses or manipulations done or committed by a police officer. Moreover, even if the police version is believed that the above statement was tendered in the morning of next day by the complainant/ PW5, even then there does not appear to be any possibility of false implication of the accused Riyazuddin in this case as there was sufficient evidence available to implicate him in this case and further the delay was also not too much as the exact time of commission of offences was not known and as per the slip Ex. PW9/DA of Jeevan Hospital the deceased was still in the above hospital till about 9:00 PM as time 20:51:54 hours appears on the same. Further, there was no reason or motive on the part of the complainant/PW5 or his brother/PW1 also to falsely implicate the accused Riyazuddin in this case if any other doctor or even Dr. Yusuf Rehman was actually running the above clinic or was the culprit as they would have been more interested SC No. 119/06 State Vs Riyazuddin & Anr 40 in seeking the implication and conviction of that person and not of a compounder of the clinic.
60. It is also argued by Ld defence counsels that the FIR of this case is not found signed by the complainant/PW5 and the same has also been anti-timed and anti-dated and some judgments in cases State of Maharashtra Vs. Ahmed Gulam Nabi Shaikh & Ors 1996 (4) Crimes 352 and Meharaj Singh Vs. State of U.P. (1994) 5 SCC 188 have also been relied upon by Ld defence counsel for accused Riyazuddin on this aspect. However, the above submissions being made by Ld defence counsels are not of any help to the case of the defence as it is found that though the FIR is not signed by the complainant but it was registered on the basis of a signed statement Ex. PW5/A given by the complainant/PW5. The judgement in case of Ahmed Gulam Nabi, Supra being relied upon by Ld counsel for the accused Riyazuddin is found to be not applicable in the instant case. Even the judgement Meharaj Singh, Supra on the aspect of anti-timing and anti- dating of the FIR is held to be not applicable in this case as rather in this case, the investigating officer appears to have delayed the registration of this case, without any fault on the part of the complainant. One other judgement in case of Shyam Sunder & Raj Kumar Vs. State 58 (1995) DLT 505 (DB) has also been referred by Ld defence counsel for above accused on the point that the entire case of the prosecution should be thrown out as no special report SC No. 119/06 State Vs Riyazuddin & Anr 41 was sent to the concerned MM after the registration of this case and this casts serious doubts on the trustworthiness of the prosecution story, but the above judgment is also distinguishable as the same has been given in a case of murder whereas this case pertains to a culpable homicide not amounting to murder or caused by medical negligence.
61. Ld counsel for the accused Riyazuddin has also pointed out the delay of about 14/15 days in effecting the arrest of the above accused and has also referred to one judgment in case Bhagwan Singh & Ors. Vs. State of MP 2003 SAR (Criminal) 127 (SC) and Joseph @ Jose Vs. State of Kerala 2003 SAR (Criminal) 528 (SC). On this ground also the case of the prosecution cannot be thrown out as the delay, if any, in effecting the arrest of the above named accused was on the part of the investigating officer, who appeared to have already misconducted the proceedings by not registering the case promptly. Moreover, in the above case, the accused was named in a statement made subsequently by a witness U/S 161 Cr.P.C., whereas in this case the accused Riyazuddin was named in the FIR itself. The depositions made by the IO/PW16 as well as PW11 HC Sube Singh regarding the arrest of the accused Riyazuddin from his clinic on the basis of a secret information are also being assailed by Ld defence counsel representing the above accused on the ground that the evidence regarding the arrest of the above accused is a manipulated evidence as there was no SC No. 119/06 State Vs Riyazuddin & Anr 42 question of receiving of any secret information in this regard as the accused being a compounder was always available in the said hospital. However, the alleged discrepancies, if any, in the evidence of the prosecution in this regard are not found to be material as the accused is named in the FIR itself and his identity was not in dispute and hence the delay caused in his arrest, whether due to the conduct of the accused or of the IO, is also not found to be fatal.
62. It has also been submitted by the accused Riyazuddin in his statement U/S 313 Cr.P.C. and also during the arguments that he was not present in the clinic either on 03.02.2006 when the deceased was brought in the clinic for the first time or on 04.02.2006 when the alleged operation or abortion of the deceased was performed in the above clinic or her condition had deteriorated and it is being stated that he had already gone to Nainital with permission of Dr. Yusuf Rehman in the morning of 03.02.2006 and the depositions made by PW14 Sh Raj have also been referred to corroborate the above plea of alibi being raised by the above accused. However, for appreciation of this plea of alibi of the accused, it will be appropriate to appreciate the testimony of PW14 Sh Raj and the other evidence led on record.
63. PW14 Sh Raj is a witness from the above Aaysha Clinic and he has claimed that he was working as a SC No. 119/06 State Vs Riyazuddin & Anr 43 compounder in the above clinic at the relevant time and the accused Riyazuddin was also working as a senior compounder in the said clinic, which was being run by Dr. Yusuf Rehman. He has stated that the above patient Sushmita was brought in the above clinic on 03.02.2006 by her husband Manoj as she was having some abdominal pain and she was examined there by Dr. Yusuf Rehman, Dr. Huma Shamshi and also by Dr. Shabana Talat, who was called there telephonically by Dr. Yusuf Rehman, and the signatures of Manoj were also taken by Dr. Huma Shamshi on some form. However, he also states that the patient was not admitted in the clinic on 03.02.2006 and was sent back after giving some medicines and she was again brought to the clinic by her husband on 04.02.2006 at about 12/12.30 noon and the accused Riyazuddin was not present in the clinic at that time as he had already gone to Nainital in the morning of 03.02.2006 after obtaining permission from Dr. Yusuf Rehman.
64. He has also stated that the above three doctors had again examined the above patient on 04.02.2006 and had sent her for ultrasound to Shadab Imaging Centre and after her ultrasound examination, Dr. Yusuf Rehman had told her husband Manoj that she was pregnant and since Manoj wanted to get the above pregnancy aborted, he had asked Dr. Yusuf Rehman to abort the same but since there were no facilities available in their nursing home for the same, Dr. Yusuf Rehman had taken them to Lions Hospital first and then to Jeevan Hospital in an SC No. 119/06 State Vs Riyazuddin & Anr 44 autorickshaw for getting the above pregnancy terminated and this witness had also accompanied them. As per this witness, the deceased Sushmita was admitted in the Jeevan Hospital for her abortion and the complainant Manoj had brought the amount of Rs. 1800/- from his house and had also deposited the same there and when the deceased had collapsed on the operation table itself of the above Jeevan Hospital, some heated discussion had taken place there and the dead body of the deceased was brought to the Aaysha Nursing Home and subsequently the matter was reported by Sh Manoj to the police after a ruckus occurred at the clinic because of the heated exchange between the doctors and the villagers of Sh Manoj, who had gathered there.
65. When the depositions made by this witness are read in entirety and with reference to the other evidence led on record, he is not found to be a truthful witness. He admittedly was working as a compounder in the above nursing home which was being run by the accused Riyazuddin and hence he was his subordinate and a witness who was under the influence of the above accused and was interested in his acquittal. It is found that the above plea of alibi regarding the going of accused to Nainital has been raised at a very belated stage as no suggestion is found to be given in this regard to the two material witnesses of the prosecution story, i.e. PW1 and PW5/complainant, who earlier stood examined on record. This witness was also got declared SC No. 119/06 State Vs Riyazuddin & Anr 45 hostile by Ld. Addl. PP on certain aspects and during his cross examination conducted by Ld. Addl. PP he was also confronted with his previous statement Ex. PW14/A made during investigation on certain material aspects, like the working of the accused/Dr. Riyazuddin in Aaysha clinic as a doctor and not a compounder, the examination of the deceased Sushmita by the above accused and her reference by the accused to Shadab Imaging for Ultrasound, her re-examination by the accused on 04.02.2006, her taking of to Lions and Jeevan Hospital due to her worsening condition etc, and the credit of this witness stands badly shaken and his statement can be safely discarded as it appears that he had been influenced or won over by the above accused. Moreover, his depositions are also falsified by the other evidence led on record, like the testimonies of PW1, PW4, PW5, PW6, PW8 and PW15 etc. and the documents proved on record by them.
66. No other satisfactory evidence has also been produced on record to corroborate or substantiate the above plea of alibi of the accused Riyazuddin and though one defence witness Sh Shagir Ahmad was also examined in this court to substantiate this plea, but a bare perusal of his testimony will show that he is not a reliable witness and he is also an interested witness who was simply made to stand in the witness box to corroborate the above false plea of alibi of accused. This witness is residing in the same locality in which accused SC No. 119/06 State Vs Riyazuddin & Anr 46 Riyazuddin is residing, he was not a summoned witness, he could not produce any evidence of his visit to the above clinic on the relevant date when the death of the deceased had taken place, i.e. 04.02.2006, and further he has also not been able to satisfy this court during the process of his examination and court questioning as to how he had come to depose in this court regarding the above incident and hence his testimony is also liable to be outrightly discarded and the plea of alibi being raised by the accused Riyazuddin is also held to be not acceptable.
67. The Ld defence counsels have also argued that though in the FSL report Ex. PW16/N, human blood was detected on one mattress/gadda and in the blood guage of the deceased, but in the report Ex. PW16/O the grouping of the blood on the above gadda could not be established though the blood guage of the deceased was having the grouping 'O'. However, even in the absence of the above determination of the grouping of the blood on the mattress seized from the above nursing home, which could have been a corroborating evidence to establish the recovery of the dead body of the deceased from a bed of the above nursing home, there is sufficient oral evidence in the form of depositions of PW1 and PW5/complainant to prove the same. The judgment in case of Lallu Manjhi & Anr Vs. State of Jharkhand 2003 SAR (Criminal) 122 (SC) being relied upon by Ld defence counsel on this aspect can be differentiated.
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68. Though Ld defence counsels have also pointed out that the site plan Ex. PW16/A is dated 04.02.2006 and is also bearing the particulars of this case, which admittedly was registered on 05.02.2006, and this is an evidence of the fact of manipulation of the above document by the IO/PW16 and is a ground to discard the entire prosecution story. The judgments in cases Mohd Hashim Vs. State 1999 VI AD (Delhi) 569, Subhash Kurmi Vs. State of Assam 1998 (1) Crimes 515 and Zafar Vs. State of U.P. 2003 SAR (Criminal) 118 (SC) have also been referred to in this regard. However, the above discrepancy and the judgments being relied upon by Ld defence counsels are also held to be not sufficient to secure the acquittal of the above accused in this case as even if the above site plan is held to be prepared subsequently by the IO/PW16 and anti-dated, the same cannot be made to be a ground for discarding the other evidence of the prosecution and the conviction of the accused Riyazuddin can still be arrived in this case without seeking any help from the above site plan. Moreover, the complainant/PW5 has specifically stated that he has pointed out the above clinic on 04.02.2006 itself and the manipulation, like the other manipulation pertaining to delay in the registration of FIR etc, if any, was done by the IO/PW16 and the complainant should not be made to suffer because of the mis-investigation of the case conducted by the IO.
69. The evidence brought on record clearly SC No. 119/06 State Vs Riyazuddin & Anr 48 establishes that Dr. Riyazuddin, with the help of some other doctors, had performed some surgical process in his above clinic to abort the above pregnancy of the deceased Sushmita and she was taken to Jeevan Hospital only when her condition had deteriorated seriously. The depositions made by PW9 and PW15, who are the two doctors from the above hospital, show the pitiable condition in which she was taken in the above hospital and she was almost dead by that time. The post-mortem examination report of the deceased has also been duly proved on record by the depositions of PW2 and PW3, who are the two doctors from AIIMS Hospital, and as per the said report her death was caused because of haemorrhagic shock due to perforation her uterus caused by application of irresponsible surgical intervention and no efforts had been made for resuscitation of the patient and this was opined to be a case of gross medical negligence. Further, in the above abortion, the pregnancy of about 22 weeks carried by deceased had also been aborted, though the above doctors were not competent to abort the same under the MTP Act and the above nursing home was also not registered under the said Act.
70. In view of the above discussion, it is held that prosecution has successfully proved on record that the death of the deceased Sushmita has taken place due to the medical negligence of the accused Riyazuddin, who can only be termed as a quack as he was not having any SC No. 119/06 State Vs Riyazuddin & Anr 49 degree from any competent Institute to perform any such surgery for the abortion of the above pregnancy. As per the depositions made by PW8 Dr. Shadab and the ultrasound report Ex. PW8/B proved on record, the deceased was carrying a single live foetus of about 22 weeks in her uterus at that time and thus she was in a very advanced stage of her pregnancy and as per the depositions of this witness or the above ultrasound report there were also no complications in the above pregnancy, which could have necessitated the above abortion. Hence, it cannot also be said that the above surgery or operation performed by the accused Riyazuddin was done or performed in good faith to save the life of the deceased Sushmita, even though the consent of her husband was taken for performing the same.
71. Though during the course of cross examination of some witnesses, some suggestions have been given that the complainant/PW5 Manoj himself wanted to get rid of that pregnancy or wanted to abort the above child and even PW14 Sh Raj had made some depositions in this regard, as discussed above, but the testimony of PW14 has not been believed and even if it is taken to be true that PW5/complainant had himself taken the services of the accused Riyazuddin for the abortion of the above pregnancy of his deceased wife, the same can be relevant only for ascertaining the consent by this witness for doing the above abortion and it cannot in any way infer SC No. 119/06 State Vs Riyazuddin & Anr 50 or carry a consent to cause death of his wife in the above process.
72. The evidence led on record clearly establishes it to be a case of death of the wife of the complainant/PW5 having been caused by the above act of surgical intervention done by the accused Riyazuddin to cause her miscarriage and this case squarely comes within the purview of Section 314 IPC first part, which deals with death caused during such miscarriage done with the consent of the women. The explanation attached to this section clearly specifies that it is not essential to this offence that the offender should know that the act was likely to cause the death. The facts of this case resemble to those of the case of Jacob George Vs. State (1994) 3 SCC 430 where the deceased, with an intention to have abortion, got herself admitted into the clinic of a quack, who operated upon her daringly, crudely and criminally resulting into her death and he was found guilty U/S 314 IPC and accordingly convicted and sentenced. Even in the case of Surendra Vs. State (2000) 4 SCC 110, the doctor concerned was held guilty under the above section for causing death of a patient while terminating her pregnancy as neither he was competent to terminate the pregnancy nor his clinic had the approval of the government and even the basic facilities for abortion were not available in his clinic.
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73. After the enactment of the MTP Act, the above provisions of IPC relating to miscarriage have been made subservient to it because of the non-obstante clause in Section 3 of the MTP Act which permits abortion/miscarriage by a registered medical practitioner under the said Act under certain circumstances, like where there is a danger to the life or risk to the physical or mental health of the women; when such pregnancy arises from a sex crime like rape or when there is a substantial risk that the child, if born, would suffer from certain deformities or diseases. The present case is not covered by any of the above clauses and hence the above termination of the pregnancy of the deceased cannot be said to be a valid termination of the pregnancy, as authorized by the MTP Act.
74. From the depositions made by PW14A Dr. R.N.Baisya of Delhi Medical Council and their reply/letter Ex. PW14/C given in response to the queries/letter Ex. PW14/A sent by the IO/PW16, as well as of the IO/PW16 himself, it is clear that neither the accused Riyazuddin was a registered medical practitioner in terms of Section 3 of the MTP Act and as defined in Section 2(d) of the said Act nor the above Aaysha Clinic was a clinic or place approved U/S 4 of the MTP Act for the performance of such abortions. Both the above offences defined U/S 3 & 4 of the MTP Act are punishable U/S 5(2) & 5(3) respectively of the above said Act. Hence, apart from committing an offence punishable U/S SC No. 119/06 State Vs Riyazuddin & Anr 52 314/34 IPC, the accused Riyazuddin is also found to have committed offences U/S 3 & 4 of the MTP Act which are punishable U/S 5(2) & 5(3) of the MTP Act.
75. However, as far as the involvement of the accused Shabana Talat is concerned, the evidence against her regarding her involvement in the above surgery/operation for termination of the pregnancy of the deceased is found to be not convincing enough. She was not named as an accused in the FIR and as per the prosecution story, she was not even supposed to be in the above clinic on 03.02.2006 when the deceased was taken to the above clinic for the first time. The depositions of PW14 Sh Raj regarding her presence in the clinic already stand discarded by this court and the complainant/PW5 himself has not made any claim that Dr. Shabana Talat was also present in the clinic on 03.02.2006 when his wife was first taken there on that day and was seen by Dr. Riyazuddin. The evidence also suggests that PW1 had not accompanied his brother/PW5 to the above clinic on 03.02.2006.
76. It is also on record that she was running a separate clinic in the name of Tanuni Clinic which was at a distance of about 1 Km from the above Aaysha Clinic and the IO/PW16 has specifically admitted this fact and also one photograph Ex. PW16/M on record to be of the above clinic of accused Shabana Talat. Though as per PW12, she had refused to join the TIP proceedings vide SC No. 119/06 State Vs Riyazuddin & Anr 53 proceedings Ex. PW12/A, but during the cross examination of the complainant/PW5 one statement dated 08.04.2006 of the complainant/PW5 has also been brought on record and exhibited as Ex. PW5/DB. In the above statement, not only the names of Dr. Shabana Talat and Huma Shamshi (since discharged), but their parentage and residential addresses etc are also found to be written and it is also found recorded that the complainant/PW5 had seen them in the PS on that day. The above TIP proceedings of the accused Shabana Talat were conducted on 05.04.2006, i.e. three days prior to the recording of the above statement, but it is found that there is some cutting in the date and month of the above statement Ex. PW5/DB which clearly shows that this date and month were subsequently changed and the month appears to have been made to be of April from the month of March, as it appears that figure '3' has been made as '4' in the above statement. In view of the above manipulation, the possibility cannot be ruled out that the accused Shabana Talat was already shown to the complainant/PW5 in the PS even before the conduction of the above TIP proceedings and hence, her refusal to join the TIP proceedings appears to be not without valid reasons. Since, she was also not previously known to the complainant/PW5 or his brother/PW1 and named in FIR, her identification in the court also cannot be made the basis of her involvement and conviction in this case, and too when the possibility is that she might have seen shown to the witnesses in the PS in between.
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77. Though Ld Addl PP for the State has pointed out that in the anticipatory bail application dated 15.07.2006 moved on behalf of the accused Shabana Talat, it was clearly admitted on her behalf that she had visited the above clinic in connection with the treatment of the deceased Sushmita, as it is found recorded in the above application that on being called by the co-accused Dr. Riyazuddin she had reached there and had found the wife of the complainant/PW5 in a precarious condition and she had advised to refer the patient to some renowned hospital, but it is observed that the above bail application is not signed by the above accused and it only bears the signatures of his counsel, though it is accompanied by a vakalatnama signed by the accused. The above alleged admissions made on behalf of the above accused cannot be made to be the basis of the conviction of the accused, in the absence of any satisfactory incriminating evidence led by the prosecution itself to prove the involvement of the above accused in commission of the above offences beyond reasonable doubts. Hence, the accused no. 2 Shabana Talat is entitled to be given benefit of doubt in this case.
78. In view of the above, it is held that the prosecution has successfully proved its case and charges for commission of the offence punishable U/S 314/34 IPC, for which charge was framed against him in the SC No. 119/06 State Vs Riyazuddin & Anr 55 alternative and which is the appropriate charge attracted in the case, and Sections 3 & 4 of the MTP Act, punishable U/S 5(2) & 5(3) of the MTP Act against the accused Riyazuddin only. He is, therefore, held guilty and convicted for the above offences and the accused Shabana Talat is being acquitted in this case giving benefit of doubt. Put up on 28.02.2013 for hearing the submissions of the accused Riyazuddin on the point of sentence.
Announced in the open
court on 25.02.2013 (M.K.NAGPAL)
ASJ/Spl. Judge, NDPS
South & South East District
Saket Court Complex
New Delhi
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56
SC No. 119/06 State Vs Riyazuddin & Anr