Delhi District Court
State vs . on 22 April, 2014
IN THE COURT OF MS. SAVITA RAO, ADDITIONAL SESSIONS
JUDGE02, CENTRAL, DELHI
FIR No.: 197/2010
PS: Sarai Rohilla
U/s:313/315/506/326/201/120B/34 IPC & 23/24/25 PNDT Act
S.C. No.: 14/2012
Case ID No. : 02401R0424112010
In the matter of:
State
Vs.
1. Hari Om @ Harish S/o Sh. Badri Prashad
R/o House no. B1757/5, Shastri Nagar, Sarai Rohilla, Delhi
2. Bhagwan Devi W/o Sh. Badri Prasad
R/o House no. B1757/5, Shastri Nagar, Sarai Rohilla, Delhi
3. Dr. Subhash Chander Gupta
S/o Sh. Swaroop Lal Aggarwal
R/o House no. B 1634, Shastri Nagar, Sarai Rohilla, Delhi
Date of Institution : 17.02.2012
Arguments Heard : 06.03.2014, 07.04.2014 and
09.04.2014
Date of Judgment : 22.04.2014
JUDGEMENT
Case Of Prosecution:
1. On 18.6.2010, vide DD no. 60B, information with respect to S.C. No.: 14/2012 1/29 " a quarrel due to forced abortion by inlaws" had been received at P.S. Sarai Rohilla. On receipt of said DD, ASI Om Prakash alongwith Ct.
Rajbir reached at the spot where complainant namely Bharti @ Kusum met them. ASI Om Prakash got her medical examination done from Hindu Rao Hospital and recorded her statement wherein she stated that on 14.6.2010 at about 8 a.m. , she was taken to nursing home of accused Dr. Shubhash Gupta by her husband and mother in law where the ultrasound was conducted and she was informed that she was carrying a female child. Thereafter she was forcibly administered three tablets and was taken to the operation room where she became unconscious and on regaining consciousness, she realized that the fetus had been aborted. On the basis of her statement, instant FIR was registered and during the investigation of the case, IO prepared site plan, obtained medical treatment papers of the complainant from Aggarwal Nursing Home, arrested all the accused persons, sent the exhibits to FSL for expert opinion, recorded statements of witnesses, obtained the required sanction under PNDT Act and after completion of investigation filed the instant charge sheet in the court.
2. Since the offences u/s 313/315 IPC are exclusively triable by the court of sessions, therefore, after supply of the documents, Ld. MM committed the case to court of sessions.
Charge Against The Accused:
3. Prima facie case u/s 313 r/w sec/ 120B IPC and sec. 201 r/w sec. 120B IPC was made out against all the accused persons, whereas S.C. No.: 14/2012 2/29 Prima facie case u/s 23 of PNDT Act was also made out against accused Dr. S.C. Gupta and prima facie case u/s 24/25 of PNDT Act was made out against accused Hari Om and Bhagwani Devi. Charge was framed against them accordingly, to which they pleaded not guilty and claimed trial. Witnesses Examined:
4. In support of its case, prosecution has examined 26 witnesses in all.
5. PW1 is Ms. Bharti, complainant/victim of the case who narrated about the incident of her alleged forcible abortion by accused no. 3 at the instance of accused no.1 and 2 and proved her statement as Ex. PW1/A.
6. PW2 is Mrs. Maya Devi, mother of complainant/PW1 who, as stated, after receipt of information from her daughter with respect to her abortion had made the call to police at 100 number .
7. PW3 is Dr. Sanjay Das, from Hindu Rao Hospital, who examined PW1 on 18.6.2010 in Casualty and proved the MLC as Ex. PW3/A.
8. PW4 is Dr. Wajiha who was working at Aggarwal Nursing Home as Personal Assistant and proved the consent letter of PW1 as Ex. PW1/DA .
9. PW5 is Dr. Madhusmita from Hindu Rao Hospital who was working as part time Gyaneocologist at Aggarwal Nursing Home on the date of incident and had examined PW1 at 10.15 a.m. and proved the S.C. No.: 14/2012 3/29 treatment slip as Ex. PW5/A.
10. PW6 is Bhagwan Dass, father of complainant/PW1 who proved the seizure memo of specimen signature and handwriting of his daughter as Ex. PW6/A.
11. PW7 is Dr. Jasmine Chawla Sharma from Hindu Rao Hospital who identified the handwriting and signatures of Dr. Mukta Seth on MLC Ex. PW3/A.
12. PW8 is H.C. Tekram , the MHC(M) who had sent the case property to FSL, Rohini and proved the photocopy of RC as Ex. PW8/A and photocopy of receipt as Ex. PW8/B.
13. PW9 is H.C. Rattan Singh, the duty officer who proved the copy of FIR as Ex. PW9/A.
14. PW10 is Ct. Gajender and PW15 is Ct. Satyaveer Singh who were with the IO during the investigation of the case and proved the memos prepared by the IO .
15. PW11 Dr. Gursharan Lamba, HOD, Radiology and Ultrasound department from Sunder Lal Jain Hospital who conducted ultrasound on the patient Bharti and proved his detailed report as Ex. PW11/A.
16. PW12 is SI Jitender Kumar who proved the entry register seized from Aggarwal Nursing Home as Ex. PW12/A.
17. PW13 is Dr. Girish Tyagi from Delhi Medical Council who on receipt of query from IO, confirmed the registration of Dr. Subhash S.C. No.: 14/2012 4/29 Chander and Dr. Madhusmita Chetia and had written letter Ex. PW13/A in this regard.
18. PW14 is Ct. Rajbir Singh who took the rukka to police station for registration of FIR.
19. PW16 is Sanjay Verma, the photographer who did not support the case of prosecution and stated that the photographs lying on judicial file were not clicked by him at any point of time.
20. PW17 is ASI Om Prakash, IO of the case who conducted the investigation of the case and proved the memos prepared by him during the course of investigation.
21. PW18 is W/Ct. Indu and PW21 is SI sribhagwan who are the witness to arrest of accused Bhagwani Devi.
22. PW19 is Vijay Bhardwaj, Deputy Registrar from Cooperative Societies, Parliament Street who proved the letter dated 18.11.2010 as mark PW19/A.
23. PW20 is SI Jitendra Kumar, second IO of the case who collected various registers from nursing home of Dr. S.C. Gupta, prepared the challan and filed the same before the court.
24. PW22 is Inspector Jai Bhagwan who forwarded the charge sheet of instant case alongwith annexures for sending the same to the court.
25. PW23 is Dr. Sudha Salharn from Safdurjang Hospital who proved the document Ex. PW20/DA which was submitted by her to S.C. No.: 14/2012 5/29 Additional MS Safdarjung Hospital.
26. PW24 is Santosh Kumar from Office Superintendent, Directorate of Education who proved the letter dated 7.6.2011 as Ex. PW24/A.
27. PW25 is Vijender Singh , SSO (Documents) from FSL, Delhi who proved the FSL report dated 11.4.2012 as Ex. PW17/G.
28. PW26 is Sh. Ashish More, Deputy Commissioner, North, Delhi who accorded sanction under the provisions of PNDT Act against accused persons and proved the same as Ex. PW20/J.
29. Statements of all the accused persons u/s 313 Cr.P.C. was recorded wherein they denied the case of prosecution and stated that they are innocent and have been falsely implicated in the present case. They further chose to lead evidence in defence and examined three witnesses in support of their plea.
30. DW1 is Rakesh Jain who proved the rent agreements executed between his wife and accused Hari Om as Ex. DW1/A, DW1/B and Ex. DW1/C.
31. DW2 is Dr. Jyoti, Consultant from Sunder Lal Jain Hosptal examined PW1 in Sunder Lal Jain Hospital and proved the OPD card as Ex DW2/A.
32. DW3 is Dr. Indira Prasad from Lady Harding Medical College who brought the summoned record pertaining to admission no. 198219 dated 30.6.2009 and proved the records running into 9 pages collectively S.C. No.: 14/2012 6/29 as Ex. DW3/A.
33. I have heard Ld. APP for the state as well as Ld. Defence counsel and have perused the record.
34. The instant case was registered on the complaint of complainant/PW1 Bharti who narrated the sequence of events in her examination before the court that she was married to accused Hari Om @ Harish on 11.05.2006 in accordance with Hindu Rites & Ceremonies and gave birth to a female child namely, Aashi on 21.10.2007. In the year 2010, she was again pregnant and was carrying three months pregnancy when she was forcibly taken by her mother in law Bhagwan Devi and husband Hari Om @ Harish to S.C. Aggarwal Nursing Home, Shastri Nagar, Delhi for sex determination of the fetus. She was made to sit down in the waiting room and her motherinlaw along with her husband went inside the room of doctor. They talked with the doctor for about 1015 minutes and thereafter she was taken for conducting her ultrasound. After conducting ultrasound, doctor informed her motherinlaw and husband that she was carrying a female fetus after which her husband and motherinlaw consulted with doctor and told him to abort her female fetus. She told the doctor not to abort the same and he should not abort the same without her consent, subsequent to which she was given three tablets by her mother in law and husband forcibly and she became semi conscious. Thereafter doctor took her to the operation room where she was given injection by the Doctor and she became unconscious. After S.C. No.: 14/2012 7/29 sometime, when she regained consciousness, she found bleeding in her private parts and felt emptiness in her stomach and also felt pain in her legs and knees. After sometime, her husband and mother in law took her to home and told her not to tell anything to anyone. On the next day after her arrival at matrimonial home, on the pretext of purchasing medicines, she went outside her house and made telephonic call to her mother who came to the place where she was standing and she told her mother with respect to forcible abortion of her female fetus at Aggarwal Nursing Home by the doctor as well as made call at 100 number from the Mobile Phone of her mother. Police came there and she was taken to PS Sarai Rohilla and thereafter to Hindu Rao Hospital for her medical examination. Before the court, besides her mother in law and husband, PW1 identified accused Dr. S.C. Gupta as the doctor who had allegedly aborted her female fetus. In terms of own statement of this witness, she was aware of the purpose of her being taken to nursing home being run by accused no. 3 Dr. S.C. Gupta i.e. for sex determination of the fetus and the fetus was aborted despite her protest, by accused no.3 at the asking of other accused persons i.e. her husband and mother in law, whereas PW4 who had been working at Aggarwal Nursing Home stated about the complainant having visited the nursing home with complaint in abdomen and bleeding . In terms of statement of PW4, PW1 was examined by Dr. Madhusamita who opined that there was excessive bleeding PV , mouth of uterus was open and it was not possible to save the pregnancy. PW4 was instructed by Dr. S.C. No.: 14/2012 8/29 S.C. Gupta to obtain the consent of patient for abortion but as the patient was unable to write for the consent, so she herself had written the consent which was read over and explained to the complainant and after going through the same, complainant singed the consent letter as well as accused Hari Om and Bhagwan Devi had also put their signatures at point B and C on Ex. PW1/DA. There are two consent letters on record. One is the handwritten consent letter i.e. Ex. PW1/DA and the other is the printed proforma Ex. PW4/A. PW4 specifically denied that consent letter was reduced into writing by her on the dictation of accused Dr. S.C. Gupta and initially though she had stated that there was no consent letter proforma in the hospital for obtaining the consent but after Ex. PW4/A was shown to the witness, she stated that the handwriting encircled in red portion at both places was written by her on Ex. PW4/A whereas word ' Bharati' was filled up by Dr. Madhusamita on Ex. PW4/A. According to this witness, signature on Ex. PW4/A was not obtained by her or in her presence but Ex. PW1/DA was signed by the complainant in her presence and she denied the suggestion put by Ld. APP that the complainant had not signed Ex. PW1/DA in her presence. She reiterated by denying the suggestion that the complainant was not in position to speak and confirmed that she was not in position to write. Whereas complainant/PW1 denied having consented for the abortion and also denied her signatures on the consent letter Ex. PW1/DA. The said consent letter was sent for opinion of handwriting expert which report was proved S.C. No.: 14/2012 9/29 on record as Ex. PW17/G. In terms of report, the person who wrote specimen handwriting in red enclosed portion S9 to S12, also wrote the writings in red enclosed portion marked Q1 and as reported, it was not possible to express any opinion on signatures in red enclosed portion marked Q2 in absence of admitted signatures. It may be noted that marked S9 to S12 was the specimen handwriting of Dr. Wahija and marked Q1 was her admitted handwriting on consent letter Ex. PW1/DA, which in terms of FSL report, tallied with each other. However, matching of these two handwritings does not serve any fruitful purpose for the prosecution case since it was admitted by PW4 herself that the contents of Ex. PW1/DA were in her handwriting and complainant/PW1 had only put her signatures on the same, whereas with respect to the signatures of complainant/PW1 on consent letter, as reported, no opinion was possible to be expressed. Thus, the case of prosecution with respect to the fact that consent letter Ex. PW1/DA does not bear the signatures of complainant/PW1 has remained unproved on record, in terms of report Ex. PW17/G as well as did not benefit the case of defence on this aspect.
35. The story of prosecution which so far has emerged is that the complainant was forced to undergo abortion after the ultrasound of the complainant was conducted at Aggarwal Nursing Home and accused no.1 and 2 were informed by accused no.3 regarding the complainant carrying female fetus. On the other hand, the defence taken on behalf of accused no.3 Dr. S.C. Gupta was that the complainant had come to Aggarwal S.C. No.: 14/2012 10/29 Nursing Home with history of PV and pain in abdomen for the last three days preceded by her visit on 13.6.2010 and then again on 14.6.2010 . On 13.6.2010, she was stated to be a case of threatened abortion and in the evening she went back. On 14.6.2010 she again came with the complaint of severe bleeding, passing of clots PV and severe pain in abdomen. She was admitted, examined and treated by Dr. Madhusmita who diagnosed her as case of inevitable abortion and after some hours in the evening, complainant expelled fetus of her own. She was observed there for some time and thereafter was discharged with proper medical advice. As per the plea of defence, since it was a case of inevitable abortion , no ultrasound was conducted at Aggarwal Nursing Home and also no forceful abortion was conducted upon the complainant. However in terms of the prosecution case, complainant had visited Sunder Lal Jain Hospital on 12.6.2010 where her ultrasound was got conducted and according to her allegations, her second ultrasound was conducted on 14.6.2010 at Aggarwal Nursing Home whereas she denied her visit to Aggarwal Nursing Home on 13.6.2010 and also denied with respect to any complaint in abdomen or excessive bleeding. She specifically denied her visit to Aggarwal Nursing Home on 13.6.2010 and stated that she was forcibly taken to Aggarwal Nursing Home only on 14.6.2010 by her husband and mother in law . She also denied handing over of her treatment papers to the IO as well as her signatures on the seizure memo mark PW1/B. Since the complainant had deviated from her statement S.C. No.: 14/2012 11/29 given to the police, she was confronted by Ld. APP with respect to two slips dated 13.6.2010 and 14.6.2010 written by accused Dr. S.C. Gupta with regard to BP and prescription of medicine and the same was handed over by her to the police on 20.6.2010, to which she answered that she had not got her blood pressure checked on 13.6.2010 from Dr. S.C. Gupta at Aggarwal Multi Hospital nor she had been given any prescription slip of medicine to be purchased from the chemist as well as she had not given those slips to the police at any point of time. It may be noted that in her statement itself she had stated about her escape from matrimonial home on the pretext of buying medicines as prescribed by the doctor. In these circumstances, the contention of Ld. counsel for defence is tenable that if no medicines had been prescribed by doctor as stated by PW1 on 14.6.2010, then there was no occasion or excuse for the complainant to go out of the matrimonial home to buy the medicines as allegedly prescribed, besides the specific deposition of PW17 with respect to the preparation of seizure memo Ex. PW17/C and seizure of two prescription slips of treatment taken by complainant from Dr. S.C. Gupta on 13.6.2010 and 14.6.2010. PW17 had also seized treatment register of patient from Aggarwal Nursing Home which fact was also corroborated by PW12. The said treatment register contains entry pertaining to complainant Bharti at s.no. 11 on 14.6.2010 Ex. PW12/A as well as entry at s.no. 15 on 13.6.2010 which falsifies the contention of complainant that she had not visited the nursing home belonging to accused no. 3 on 13.6.2010. S.C. No.: 14/2012 12/29
36. PW1 also denied any examination by Dr. Madhusamita on 14.6.2010 and rather stated that at Aggarwal Nursing Home only Dr. S.C. Gupta had examined her. She did not even know any doctor namely Waziha who was examined as PW4 by the prosecution itself. PW1 stated that there were other doctors who examined her whose names she did not know and then stated that she was not able to tell if Dr. Madhusamita had examined her on 14.6.2010. Whereas PW4 and PW5 who are the prosecution witnesses specifically stated about examination of complainant by Dr. Madhusmita. PW5 rather stated that the complainant had visited Aggarwal Nursing Home at about 10 a.m. on 14.6.2010 and she was told by accused no.3 to examine her and on examination she found her to be a case of sixth gravita with one live birth and four previous abortions with four months ammenorrhea and inevitable abortion who had come with history of severe bleeding PV and severe pain in abdomen with passage of clots PV since three days. Her vitals were stable and on gynecological examination, the mouth of uterus was two finger dilated (open) and product of conceptus was felt on digital examination with bleeding PV +++ (severe) with presence of blood clots ++ (severe) and the fetus was in process of expulsion at the time of examination. PW5 advised blood investigation and treatment required for the case. At 2 p.m. her duty was over and she came back and the case was further managed by Dr. S.C. Gupta as well as treatment procedure was also completed by Dr. S.C. Gupta . She further proved the treatment S.C. No.: 14/2012 13/29 slip as Ex. PW5/A which was in her handwriting from point A to A and was bearing her signatures at point B. In cross examination, this witness clarified that the word Gravita means pregnancy and stated that the complainant herself had given her previous history regarding the abortions which had occurred at intervals of 1½ to 2 months and the same had been mentioned in Ex. PW5/A, though the complainant could not recall the period of time over which she had undergone these abortions and she also did not inform whether these abortions were induced or spontaneous. Both PW4 and PW5 denied any ultrasound having been conducted in their presence in Aggarwal Nursing Home and according to them, the complainant herself had come with the complaint of excessive bleeding and was in the process of inevitable abortion and it was not possible to save the pregnancy. Whereas, the complainant in her examination before the court denied having undergone any previous abortion and existence of any problem even this time.
37. In terms of own case of prosecution, the ultrasound of complainant was conducted at Sunder Lal Jain hospital also on 12.6.2010 but according to complainant she had gone to Sunder Lal Jain Hospital for routine examination and there was no urgency for her to visit Sunder Lal Jain Hospital even on that day. She stated that though she was enrolled with Mahila Centre but the enrollment with Mahila Centre was only for the purpose of checkup and examination and not for delivery of child. In terms of her statement, her ultrasound was conducted at S.C. No.: 14/2012 14/29 Sunder Lal Jain Hospital as per the advice of doctor, however she had no difficulty at that time and she was also not informed by the doctor at Sunder Lal Jain Hospital after the report of ultrasound that the heart beat of fetus was about 170 B /mins . In this regard, it was the argument of Ld. counsel for defence that PW1 was referred to PW11 i.e. Radiologist for her ultrasound to know the location of placenta and status of fetus since even at that time, the case of complainant was at the stage of threatened abortion which turned into case of inevitable abortion when she came to Aggarwal Nursing Home with the complaint of bleeding and again came on 14.6.2010 when the process of inevitable abortion had already started, which could not be stopped or reversed. Per contra, it was the submission of Ld. APP that the version of complainant with respect to the fact that when she visited Sunder Lal Jain Hospital on 12.6.2010, she had no complaint or problem as well as her fetus was not in process of threatened abortion has been corroborated by the report Ex. PW11/C given by PW 11 Dr. Gurusharan Lamba in terms of which he conducted the ultrasound of complainant with normal findings of 16 weeks and 3 days single live fetus. Prosecution has examined the said Radiologist who conducted ultrasound of the complainant at Sunder lal Jain Hospital as PW11 and according to his specific deposition, patient was advised ultrasound by Dr. S. Singh, Dr. Arpna Jain and Dr. Uma Rani and the patient/complainant was referred to him for localization of placenta which in early pregnancy is asked for if the patient has given complaints to the gynecologist like S.C. No.: 14/2012 15/29 bleeding, spotting, pain etc. . Though this witness was not able to recall whether patient was having any bleeding or not as the same was not mentioned in the form but he reiterated that he conducted ultrasound on the patient and cardiac range of fetus was 170 which as stated by him is on the higher side of normal range of 130 to 170. Further according to PW11, fetal movement could be seen as early as 0809 weeks when the limb buds start forming. In the instant case, OS was closed because if it is opened, then it was mentioned as an abnormal point in the normal report format so that the gynecologist can take further action. He admitted that his report did not mention about fetal movements or about the position of OS, though in terms of his earlier testimony, the fetal movement could be seen as early as 0809 weeks, whereas in the instant matter the fetus was 16 weeks three days. Besides that the findings of PW11 on Ex. PW11/C with respect to normal condition of fetus does not render any help to the case of prosecution in view of the specific deposition of PW23 that findings of ultrasound can be normal in early threatened abortion. Be that as it may, in terms of categorical statement of this prosecution witness, the patient was referred to him for localization of placenta which in early pregnancy is asked for if the patient has given complaints to the gynecologist like bleeding, spotting, pain etc. , thus, making it clear that there was no reason or occasion for reference of complainant to PW11 for conducting the ultrasound to know specifically the location of placenta and status of fetus, had there been no complaint like bleeding, spotting or S.C. No.: 14/2012 16/29 pain etc. which itself corroborates the plea of defence that the complainant was having complaint with respect to excessive bleeding and pain in abdomen for the last three days prior to 14.6.2010 and abovesaid also falsifies the testimony of PW1 that she had gone to Sunder Lal Jain Hospital only for routine examination having no difficulty or complaint in abdomen.
38. Not only this, the complainant in terms of her own assertion had visited Aggarwal Nursing Home only on 14.6.2010, though already found to be false on record, yet even if her assertion is taken as gospel truth that abortion was conducted on the same day and she was discharged in the evening but this assertion also remains contrary to the medical proposition as asserted by PW23 that in normal course, to abort 16 weeks pregnancy, the time varies by the drug used between 2 to 5 days, meaning thereby that minimum two days were required as per the medical jurisprudence for abortion to be completed which was not medically possible in one day as has been deposed by PW1, besides specific deposition of PW23 that threatened abortion can progress to inevitable abortion.
39. Besides the abovesaid, PW17 who was the IO had gone to Sunder Lal Jain Hospital for investigation but he had not recorded statement of the gynecologist who had attended the complainant in Sunder Lal Jain Hospital to ascertain what was the medical problem with the complainant. It was submitted by Ld. counsel for defence that S.C. No.: 14/2012 17/29 apparently the complainant was having trouble with the pregnancy because of which she went to Sunder Lal Jain Hospital and this fact could be more brought into light by the statement of Doctor/Gynecologist who examined the complainant at Sunder Lal Jain Hospital but the IO intentionally did not record said statement, because had the said statement been recorded or the related documents been filed before the court, prosecution version would have been demolished on the first day itself.
40. Another important factor pointing out towards the conduct of complainant is pertaining to the history of previous abortions which was totally negated by PW1. According to PW1, no abortion had ever taken place prior to birth of her daughter or even after her birth till 14.6.2010. According to PW1/complainant, her daughter was two and half years old when she became pregnant for the second time. She had never consulted any doctor during the period of two and half years regarding her conception and she had not gone to Sunder Lal Jain Hospital on 28.1.2010 or on 7.1.2009 as well as she specifically denied the suggestion that she had gone to Sunder Lal Jain Hospital on 28.1.2010 where she was treated as an OPD patient vide OPD no. 739 and also on 7.1.2009 vide OPD no. 106386. She also denied that she had told the doctor at Sunder Lal Jain Hospital on 28.1.2010 that she had four spontaneous abortions and she was not able to conceive since last six months prior to January 2010. She further denied any visit to LHMC hospital with her mother at any point S.C. No.: 14/2012 18/29 of time vide admission no. 198219 where also her abortion took place . Whereas the prosecution's other witness i.e. PW5 specifically stated that the complainant had come with history of severe bleeding and severe pain in abdomen with passage of clots PV since three days who was examined by her on 14.6.2010 . According to PW5, complainant had given the previous history regarding her four abortions which had occurred at intervals of 1½ to two months which had also been mentioned by her in Ex. PW5/A. Though this witness was the prosecution witness and had been examined by the prosecution yet corroborated the version of defence which was also the initial submission of this witness to police during investigation and since she has not deviated from her earlier stand therefore had not been declared hostile by the prosecution. It was submitted by Ld. counsel for complainant that this witness worked in the nursing home of accused no. 3 therefore had not supported the case of prosecution. The witness concerned had been working as Consultant doctor at the nursing home of accused no.3 and presently was stated to be working at Fortis Hospital, Shalimar Bagh, Delhi. She had not deviated from her earlier stand who herself had examined the complainant even prior to examination by accused no.3 and stated about the complainant going through the process of inevitable abortion. From the testimony of PW5, nothing can be gathered to impeach her testimony which remained inspiring and trustworthy and merely because she had been working at the nursing home of accused no.3 at that relevant time, is not sufficient a S.C. No.: 14/2012 19/29 reason to discard her testimony in comparison to the own testimony of the complainant which was falsified. Besides that testimony of DW2 who was consultant at Sunder Lal Jail Hospital and had no concern with accused no.3 or with his nursing home, also lends support to the case of defence . According to her testimony which was based on record brought by her from Sunder Lal Jain Hospital, on 28.1.2010 while she was working as consultant in Sunder Lal Jain Hospital she had examined patient namely Bharti vide OPD card no. 0739 who had given history of one normal delivery of female child followed by four spontaneous abortions. As per patient, D & C (Dilatation and Curettage) all four time and she was trying to conceive since six months at the time of examination. Similarly DW3 Dr. Indira Prasad from LHMC hospital deposed about the history of previous abortions of the complainant as was informed by herself to the doctors . According to her, vide admission no. 198219 patient Bharti was admitted in the hospital on 30.6.2009 with complaint of bleeding PV with two months pregnancy and with an ultrasound showing incomplete abortions with retained products of conception. On that day, evacuation and curettage was done. She stated that history of assault or aborficicient intake was not documented in the file. As per record, D& C of patient Bharti was done on 28.6.2009 and she left the hospital against medical advise on 29.6.2009 and at the time of readmission of patient on 30.6.2009, she had complained of bleeding PV and passage of cloth with flashy masses in morning who was S.C. No.: 14/2012 20/29 accompanied by one Maya . The consent was taken of Maya for D& C and as per record, all three previous abortions were spontaneous abortions followed by D& C, whereas the fourth abortion was conducted at LHMC hospital . Thus, not only the assertion of complainant is falsified by the testimony of prosecution's own witnesses but also by the neutral witnesses examined by defence who corroborated the plea of defence based on the records maintained in their respective hospitals. So much so, in terms of testimony of DW3 based upon record, the complainant was accompanied by her mother to the hospital in year 2009 whose name was also found mentioned in the records of hospital concerned, which was also contrary to the assertion of even mother of the complainant who had also denied about the factum of any previous abortions of her daughter, though she was the one who herself had taken her to one of such hospitals.
41. The most important aspect of the case was regarding the conducting of ultrasound of complainant at Aggarwal Nursing Home for sex determination of the fetus subsequent to which complainant was forced to undergo the abortion since as reported, she was carrying female fetus. According to PW1 her ultrasound was conducted at Sunder Lal Jain Hospital on 12.6.2010 followed by another ultrasound on 14.6.2010 which was conducted at Aggarwal Nursing Home. To prove the abovesaid, besides the testimony of PW1 the prosecution also relied upon testimony of PW23 to whom the documents pertaining to case were sent and she had furnished her report dated 25.8.2010 . As per the said report, S.C. No.: 14/2012 21/29 she had examined the ultrasound of complainant conducted in Aggarwal Nursing Home Annexure 1 but report of USG and PNDT for that USG were not attached. After the preparation of report, she returned the documents received by her alongwith Annexure1 to the office of Additional MS Safdarjung Hospital. She did not know what happened to Annexure 1 and where it was . She was not in position to admit or deny whether the documents supplied were authenticated or not but she had received those documents from competent authority i.e. Additional MS Safdarjung Hospital and had prepared her report on the basis of documents supplied to her. It may be noted that the said Annexure1 was never placed on record and it was also opined by PW23 that only if PNDT form was not filled, it is an offence under the provisions of PNDT Act otherwise no offence was committed by Dr. S.C. Gupta as well as she answered in affirmative to the question pertaining to procedure that if no ultrasound was done by the doctor at the hospital then form 'F' was not required to be filled up. It is pertinent to mention here that in terms of statement of PW17, he had collected the ultrasound report from complainant which was done in Sunder Lal Jain hospital and he had not sent any paper regarding the complainant to Safdarjung hospital for opinion. The said papers according to him might have been sent by second IO but he himself did not know who collected the opinion from Safdarjung Hospital and he had not recorded the statement of any doctor regarding the opinion of Safdarjung hospital as he was not the IO then. He S.C. No.: 14/2012 22/29 admitted that he had not taken any opinion from the doctor during his investigation as to whether a forcible abortion of 16 weeks as alleged could be completed with in the duration of four/five hours or not, nor he had recorded statement of gynecologist who had attended the complainant in Sunder Lal Jain Hospital to ascertain the medical problem with complainant. According to him, second IO had gone to Sunder Lal Jain hospital and had taken the opinion from Gynecologist regarding the medical problem of the complainant, however no such opinion is placed on record . Second IO himself has not been examined due to his reported demise and thus, the dent in prosecution case is made in the statement of this very witness. Besides the abovesaid and other material on record, it was also further admitted by PW17 that according to judicial file and investigation, there was only one ultrasound conducted, that too in Sunder Lal Jain Hospital and no other ultrasound was conducted as per the file and investigation. In these circumstances, the submission of Ld. APP and Ld. Counsel for complainant that because of the fault of IO in collection of the data, victim cannot be allowed to suffer and her statement cannot be discarded, is not sustainable and cannot be accepted. Further PW20 had called the official of Larsen and Toubro Company for inspection of ultrasound machine at Aggarwal Nursing Home who inspected the machine and prepared the report which was submitted before the court and was exhibited as Ex. PW20/A but this witness was also not able to comment upon the fact that the said machine was used by the doctor in S.C. No.: 14/2012 23/29 conducting ultrasound of the patient/complainant. He admitted that in report Ex. PW20/A it was mentioned that there was " nonvolatile memory" in the said machine and he did not find any document in the file to show that ultrasound of the patient was conducted from the said machine. Similarly PW4 and PW5 also did not support the prosecution version with respect to conducting of any ultrasound in their presence at Aggarwal Nursing Home. The very base of prosecution case was the conducting of ultrasound of the complainant for sex determination at Aggarwal Nursing Home, based upon which report the complainant was forced to undergo the abortion but in terms of the deposition of prosecution own witnesses coupled with the fact that there is nothing on record to show that ultrasound of the complainant was ever conducted at Aggarwal Nursing Home, the contention of Ld. counsel for defence is fortified that since no ultrasound was ever conducted by accused no. 3 or at Aggarwal Nursing Home, therefore charge of the prosecution that accused Dr. S.C. Gupta had conducted ultrasound of the complainant and observed female fetus, totters down like bunch of cards.
42. The attention of this court is drawn to the consent letter Ex. PW1/DA wherein the reference was to the report of ultrasound and it was submitted by Ld. counsel for complainant as well as Ld. APP that once the reference has been made to the ultrasound in Ex. PW1/DA on the basis of which anticipatory bail of accused initially was declined since in the alleged consent letter on the stationary of Aggarwal Nursing Home, it S.C. No.: 14/2012 24/29 was recorded that ultrasound was conducted, therefore the deposition of PW1 cannot be brushed aside that her ultrasound was conducted at Aggarwal Nursing Home. However Ld. counsel for defence succeeded in answering the said contention while submitting that the said reference to ultrasound was to the ultrasound which was conducted at Sunder Lal Jain Hospital and as already proved on record, the complainant was told to get the ultrasound conducted to know the location of placenta and status of fetus which in early pregnancy is asked for, if the patient has given complaints to the gynecologist like bleeding, spotting, pain etc. Besides that if the prosecution or the complainant rests its claim upon the reference to word 'ultrasound' mentioned in the consent letter, same is sufficient to demolish the entire case of the prosecution because it was since beginning the case of complainant herself that she had never consented to undergo the abortion having no problem, since other contents of that very letter/note point out towards the story to the contrary .
43. With respect to sanction, it was submitted by Ld. Counsel for defence that PW26 Ashish Moray, Deputy Commissioner who granted sanction under relevant provisions of PNDT Act, in his deposition before the court, stated that he did not recollect whose name was mentioned by the SDM in his report. He did not remember whether he had seen the ultrasound report before according sanction as well as he did not seek any medical opinion before the grant of sanction for medical documents produced before him which opinion, as argued, was mandatory to be S.C. No.: 14/2012 25/29 sought since PW26 was not a medical expert. PW26 also did not remember whether the medical opinion of Dr. Sudha Salhan was placed before him or not. In these circumstances, as argued, the sanction accorded under PNDT act was without application of mind and without going through each and every aspect of the case/documents, which is against the rule of law and cannot be accepted.
44. It was further argued that complainant even otherwise had not been residing at her matrimonial home and had been residing separately alongwith her husband at the rented accommodation bearing no. A73, Shasrti Nagar, Delhi and has dragged the name of her mother in law for ulterior motive. Though the complainant herself denied the abovesaid and submitted that she had been residing at her matrimonial home on the date of alleged incident and her mother also denied the factum of complainant having been residing separately from her in laws but she did know the address of her mother in law. Whereas the defence examined landlord of the rented accommodation as DW1 who stated that accused Hari Om alongwith his wife used to reside as tenant in their property bearing no. A73, Shastri Nagar on the top floor vide agreement dated 27.9.2008 on monthly rent of Rs. 2000/ and rent agreement was executed between his wife and accused Hari Om . According to him, rent was also reflected in the income tax statement of her wife who was owner of the property. Copy of Income Tax returns mark DW1/A in the name of wife of DW1 were also brought on record.
S.C. No.: 14/2012 26/29
45. Certain other inconsistencies and contradictions were pointed out in the deposition of prosecution witnesses and also regarding the conduct and assertion of the complainant which remained untrustworthy, uninspiring and was falsified on record. Like complainant stated that on the next day of incident on pretext of buying medicines, she went outside her matrimonial home and then called her mother followed by call to police on the same day, whereas the complaint as per record is dated 18.6.2010.
46. Statement of PW16 Sanjay Verma, Photographer who had clicked the photographs denied that the photographs mark 16/A1 to A6 were taken by him at any point of time and he had not gone anywhere to click the photographs outside his shop as he was a sugar patient. He denied his statement mark X allegedly given to the IO as well as suggestion of Ld. APP that on 21.6.2010 at about 3 p.m. on the call of police, he had gone to Aggarwal Multi Hospital and had clicked six photographs of said hospital from different angles.
47. In terms of statement of complainant, she was forcibly taken to Aggarwal Nursing Home on 14.6.2010 by her husband as well as mother in law, however in terms of statement of PW4, accused Bhagwani Devi had come to Nursing Home after about half an hour of the arrival of complainant and her husband, which rather corroborates the plea of defence that complainant initially had gone to Aggarwal Nursing Home with her husband since she complained of having pain in abdomen and S.C. No.: 14/2012 27/29 when her condition started deteriorating, her mother in law was also called by making telephone call to her at Aggarwal Nursing Home.
48. The only daughter born out of the wedlock is in custody of accused and as submitted by Ld. counsel for accused, it was rather complainant who deserted her daughter and did not care to look after her, whereas it was also admitted by the complainant in her testimony that she has not filed any case of custody of her daughter namely Aashi.
49. Having discussed above, I have no hesitation to conclude that prosecution has miserably failed to prove its case against the accused persons regarding conducting ultrasound of complainant on 14.6.2010 in the nursing home being run by accused Dr. S.C. Gupta as well as causing miscarriage of complainant by illegal means or forcing her to undergo abortion. All the accused persons are accordingly acquitted of the offence u/s 313 r/w sec/ 120B IPC and sec. 201 r/w sec. 120B IPC. Accused Dr. S.C. Gupta is further acquitted of the offence u/s 23 of PNDT Act as well as accused Hari Om @ Harish and Bhagwan Devi are also acquitted of the offence u/s 24/25 of PNDT Act.
50. In terms of section 437A of Cr.P.C., the bail bond already furnished by the accused persons are extended for the period of 6 months with the condition that they shall appear before the Hon'ble High Court as and when such notice is issued in respect of any appeal filed by the state against the judgment within a period of 6 months. Case property be S.C. No.: 14/2012 28/29 confiscated to the state after the expiry of period of revision/appeal, if any. File be consigned to record room.
(SAVITA RAO) Additional Sessions Judge02 (Central) Tis Hazari Courts, Delhi Announced in the open court today i.e. on 22.04.2014 S.C. No.: 14/2012 29/29