Delhi District Court
State vs 1. Dr. Archana Gupta on 26 February, 2010
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IN THE COURT OF SH. B.S. CHUMBAK, ADDITIONAL SESSIONS
JUDGE : DELHI
Case ID Number 02402R0362652004
Session Case No. 109/09
Assigned to Sessions 24/12/04
Arguments heard on 22/02/10
Date of order 26/02/10
FIR NO. 383/04
Police Station SEEMA PURI
Under Section 376/313/109 IPC
Out come of the judgment Acquitted
State Versus 1. DR. ARCHANA GUPTA
W/O DR. RAJIV GUPTA
R/O 9-A POCKET 1
DILSHAD GARDEN, DELHI
2.MUNI W/O LATE UDAYBIR SINGH
R/O D-113, NEW SEEMA PURI,
DELHI
Pr.: Ms. Neelam Narang, Ld. Addl. PP for state.
Sh. S.R. Raghav Ld. Counsel for accused Archana Gupta.
Sh. Ranbir Singh Kundu Ld. Counsel for accused Muni.
JUDGMENT
1. On 30/08/04 a case u/sec. 366/376/342/120B/311/312/34 IPC was registered at police station Seema Puri vide FIR No. 383/04 on the basis of complaint filed by Kumari Ruby d/o Abdul Kalam Shekh r/o house of 1 2 Bhatti, Jawahar Park, Shalijmar Garden, Sahibabad, Ghaziabad, UP against Sonu Sharma @ Chhotu s/o Udaiveer Sharma, Muni w/o late Udaiveer Singh both r/o D-113 New Seema Puri, Delhi and Dr. Archana Gupta w/o Dr. Rajiv Gupta r/o 9-A Pocket 1 Dilshad Garden, Delhi. Statement of Kumari Ruby in brief is as follows :
"She was residing at the aforesaid address and was 15 years old. She used to do work as maid servant. About three months ago she started working as maid servant at house no. D-113 New Seema Puri, Delhi belonging to Muni w/o late Udaiveer Singh. During those days Sonu @ Chhotu s/o Muni committed rape upon her on the pretext to get marry with her. She narrated this incident to Muni but inspite of correcting her son, she several times confined her in a room with her son Sonu after closing the door from outside. Sonu continued to commit rape upon her. Muni also assured her that she would got marry her with her son. Due to the aforesaid sexual assault committed by Sonu she became pregnant. This fact was also disclosed to accused Muni. She took it lightly and took her to a doctor at Dilshad Garden and got her pregnancy terminated. Muni refused to got marry her with Sonu."
2. After registration of the case on 30.8.04 accused Sonu @ Chhotu was arrested. Prosecutrix and accused Sonu both were got medically examined vide MLC bearing no.2812/04 and no. C-2816/04. Ossification test of prosecutrix was got done wherein her age was opined as 18-19 2 3 years. At the time of her medical examination a prescription slip dated 12.6.04 bearing signature of Dr. Archana Gupta was taken in possession. In the light of prescription slip dated 12.6.04 matter was investigated. On 20.9.04 Dr. Archana Gupta was directed to be released on anticipatory bail, therefore, she was formally arrested on 6.10.04. Accused Muni could not be arrested and ultimately she was released on anticipatory bail vide order dated 9.12.04 of Hon'ble High Court of Delhi. Since accused Sonu was in JC, therefore, report u/s 173 Cr.P.C was filed against accused Sonu Sharma and Archana Gupta.
3. Ld. MM after taking cognizance of the offence against accused Sonu Sharma and Archana Gupta supplied the copies of the challan to both of them as required u/s 207 Cr.P.C and committed the case to the court of Sessions and on turn allocated to this court for trial. Thereafter, case was fixed for arguments on charge.
4. Before hearing arguments on charge and during the proceedings before the court supplementary challan against co-accused Muni was also filed on 17.2.05. Ld. Counsel on behalf of accused Sonu also moved an application for seeking directions to IO to file the supplementary challan 3 4 against accused Sonu Sharma before Juvenile Justice Board. Ossification test of accused Sonu Sharma was already conducted wherein his age was opined between 14-16 years, therefore, supplementary challan was filed before the Juvenile Justice Board and accused Sonu was tried separately.
5. Arguments on the point of charge on behalf of accused Dr. Archana Gupta and Muni heard. After hearing arguments and on perusal of the material placed on record a prima facie case for the offence u/s 313 IPC was made out against accused Dr. Archana Gupta and prima facie case for the offence u/s 376/313/109 IPC was made out against accused Muni to which they both pleaded not guilty and claimed trial, thereafter case was fixed for prosecution evidence.
6. Ruby (prosecutrix) appears (PW1), Smt. Farida Begum, mother of prosecutrix as (PW2), Abdul Kalam, father of prosecutrix as (PW3), HC Yashvir Singh as (PW4), ASI Gyan Prabha as (PW5), ASI Badloo Singh as (PW6), Dr. Davinder Kumar, CMO GTB hospital as (PW7), Dr. Richa Aggarwal, Sr. Resident, GTB hospital as (PW8) and Dr. Shuchi Bhatt as (PW9). Thereafter no PW left to be examined, therefore, prosecution 4 5 evidence was closed and case was fixed for examination of accused u/s 313 Cr.P.C
7. Brief testimony of all the PW's are as follows:
(i) PW1 prosecutrix deposed that about two years ago (i.e from 17.7.06) she had worked as maid servant at the house bearing no. D-
113, Sabji Mandi, Seema Puri, Delhi belonging to accused Muni. When she was working as maid servant and on an unfortunate day accused Sonu caught hold of her hand in the absence of his mother Muni. She resisted, cried and shouted, only then he released her. After 3-4 days of this incident when she had gone to the house of Muni accused Sonu offered her to take tea and after taking tea she felt giddiness and become unconscious and on regaining consciousness, she noticed that she had been raped by Sonu. She narrated this incident to co-accused Muni. On receiving this information accused Muni told her not to disclose the incident to anyone and she would make him correct. Sonu also assured her to get marry with her. After 3-4 days of the said incident she was again raped by Sonu in the absence of Muni. Due to continuous act of sexual assault she became pregnant, when accused Muni came to know about the factum of conceivement she insisted her 5 6 to go to doctor for her (prosecutrix) medical check up, then she was taken in a clinic at Dilshad Garden by accused Muni. She was medically examined by doctor, injection was given by the doctor and her pregnancy was terminated. She also identified the doctor. After termination of pregnancy she was kept for 3-4 days at the house of Muni and when she became fit, Muni told her to leave the house with the direction that she was at liberty to go anywhere. Accused Muni refused to accept the prosecutrix either as her maid or as her daughter in law. Muni also demanded Rs.1,00,000/- or a car failing which she would be compelled to indulge in prostitution.
She further stated that she went to her house and narrated the whole story to her father. Her father took her to police station PS Seema Puri and got her statement recorded. Carbon copy of the FIR is Ex. PW1/A bearing her RTI at point A and B. She also told to the police official about the doctors who had terminated her pregnancy. Police also seized the documents regarding her abortion vide Ex. PW1/B and Ex. PW1/B1. She also identified documents which she handed over the same to the police. Ld. Addl. PP for state after seeking permission, put some leading questions to ascertain truthfulness and in the said process she deposed that accused Muni used to confine her in the room with her son 6 7 Sonu and Sonu used to commit rape on her. During cross examination she denied the suggestion that she had ever married with Bachu four years ago at the court of SDM, Seelam Pur.
During cross examination by Sh. S.R. Raghav Advocate on behalf of Dr. Archana Gupta she deposed that she never visited the clinic of Dr. Archana Gupta after her abortion at any point of time. She also failed to explain whether she visited the clinic of Dr. Archana Gupta on 9.8.04 and 11.8.04, voluntarily stated that she was taken to clinic of Dr. Archana Gupta once when bleeding started but she cannot tell the date. She denied that she alongwith Bachu had gone to clinic of Dr. Archana Gupta and put her thumb impression on the consent letter marked Ex. PW1/DA1 and she also denied that Bachu also put his thumb impression which is Ex. PW1/DA1. She also denied that she and her husband Bachu gave consent for termination of her pregnancy. She also stated that she of her own did not disclose the factum of commission of rape on her before the doctor at any point of time however, this fact might have disclosed by Muni to the doctor. Rest of her testimony is reiterated by her as submitted by her during examination in chief.
(ii) PW2 deposed that two years ago (from 26.10.06) her daughter Ruby 7 8 was about 15 years old and was working as maid servant in the house of Muni (accused correctly identified). Her daughter Ruby told her that accused Sonu Sharma son of Muni confined her in a room and committed sexual intercourse with her on the promise that he would get marry with her. When she made a complaint to accused Muni then she told that she would marry her son with her daughter (Ruby). Accused Muni and her son Sonu took her daughter to hospital at D-Block and got her aborted. Accused Muni refused to get marry her son with her daughter, some medical papers were also given by accused Muni to her which she had handed over to the police and police official also obtained her thumb impression.
Ld. Addl. PP for state requested for seeking permission to cross examine the witness on certain points. Permission granted. During her cross examination by Ld. Addl. PP for state she stated that her daughter Ruby told her that accused Muni used to confine her with Sonu in a room and thereafter accused Sonu used to commit rape on her on the promise to get marry with her.
During her cross examination by Ld. counsel for accused she stated that she had come to Delhi from Bangladesh about 20 years ago. She had five children and when she came from Bangladesh at that time she had 8 9 two children and after seven months Ruby was born. During cross examination on behalf of Dr. Archana Gupta she stated that her daughter Ruby told her about he abortion in the evening of the same day.
(iii) PW3 corroborated the testimony of PW2 and also stated that he and his wife went to the house of Muni alongwith Ruby and disclosed about the factum of commission of rape by her son, then she told them that she would get Ruby married with his son Sonu Sharma. He also stated that on the next day her daughter Ruby was taken to clinic by Muni, Sonu Sharma and Shina (daughter-in-law of accused Muni) w/o Ynus. He also sent her son Javed to the house of Muni to ascertain about well being of her daughter. Her son Javed went there and saw her daughter Ruby in unconscious condition at he house of Muni. Muni sent Ruby and Javed in a rickshaw after handing over some medicines with prescription slip to Ruby and thereafter he and his wife took her to PS and narrated the entire facts. Case was registered on the statement of Ruby. During cross examination on behalf of accused Archana Gupta he confronted from his statement u/s 161 Cr.P.C Ex. PW6/DA on many points.
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(iv)PW4 deposed that on 31.8.04 he joined the investigation of this case with ASI Gyan Prabha. He took accused Sonu Sharma to GTB hospital for his medical examination and after his medical examination doctor handed over him a sealed pullanda containing blood sample and semen sample of accused Sonu with sample seal. He handed over these pullandas to IO vide memo Ex. PW4/A. Thereafter they produced accused in the court (accused Sonu facing trial in Juvenile court.
(v)PW6 is the duty officer and deposed that in the intervening night of 30- 31/8/07 at 9:45 p.m Ruby, PW1 (prosecutrix) came to PS and got her statement recorded vide FIR no. 383/04. Carbon copy of the FIR is Ex. PW1/A bearing his signature at point A. Investigation was assigned to ASI Gyan Prabha after registration of the case.
(vi)PW7 identified the signatures of Dr. Mayank Dabral on the MLC of accused Sonu @ Chhotu. He had seen him writing and signing on the aforesaid MLC. MLC is Ex. PW7/A bearing signature of doctor Dabral at point A. 10 11
(vii)PW8 identified the signature of Dr. Geeta Gupta, Senior Resident on the MLC of prosecutrix Ruby. He had seen her signing and writing on the MLC's and MLC's is Ex. PW8/A bearing signature of Dr. Geeta Gupta at point A.
(viii)PW9 deposed that on 2.9.04 he was posted as radiologist in GTB hospital and examined bony X-ray plate bearing no. 4025 dated 1.9.04 of patient Ruby and gave his opinion that age of the Ruby is between 18-19 years. The detailed report in his handwriting is Ex. PW9/A bearing his signature at point A.
(ix)PW5 (inadvertently shown as PW10 also) is the IO. She was initially examined on 05.07.07 as PW5 and deposed that on 30.8.04 duty officer handed over a copy of FIR and investigation of this case to her. Prosecutrix Ruby and her parents also met her in the PS. Kumari Ruby (PW1) handed over a prescription/treatment slip to her and told her that accused Muni had taken prosecutrix to the clinic of Dr. Archana Gupta for termination of her pregnancy and her pregnancy was got terminated by Dr. Archana Gupta. The slip which was taken in possession vide memo Ex. PW1/B. She was further examined on 14.2.08, 15.5.09 and 11 12 14.1.10 and corroborated the testimony of all the police officials. She further stated that she alongwith prosecutrix, her parents and Ct. Satpal went to New Seema Puri and at the instance of prosecutrix accused Sonu Sharma was apprehended from outside his house. Accused was taken to PS. On the next day both Sonu Sharma and prosecutrix were got medically examined from GTB hospital. The medical prescription were handed over to her by prosecutrix on 30.8.04 and doctor also affixed seal of GTB hospital on the said prescription slip and handed over the same to him.
HC Yashbir handed over two slides given to him by doctor of GTB hospital of which she prepared seizure memo Ex. PW4/A. She further stated that on 1.9.04 prosecutrix Ruby was taken to GTB hospital for her ossification test. Accused Archana Gupta was also formally arrested on 20.9.04 as she had already obtained anticipatory bail from the court. She took steps to search the accused Muni and also came to know that on 18.9.04 anticipatory bail of accused Muni was rejected by the Session Court. On 2.10.04 result of ossification test was collected. Muni obtained anticipatory bail from Hon'ble High Court of Delhi. After completion of investigation challan u/s 173 Cr.P.C was filed against Sonu Sharma and Dr. Archana Gupta on 14.10.04. She further stated 12 13 that on 16.12.04 accused Muni was formally arrested and thereafter on 17.12.04 a supplementary challan was also filed against accused Muni. She also identified accused Muni and Dr. Archana Gupta in the court. Arrest memo of Dr. Archana Gupta is Ex. PW5/10/A bearing her signature at point A. Arrest memo of accused Muni is Ex. PW5/10/B. She also identified the case property when shown to him in the court and entire case property is Ex. PX. Medical prescription already Ex. PW3/A. During her cross examination she stated that when she visited the clinic first time, husband of Dr. Archana Gupta met her but he had not shown any document to her and after few days when she visited second time accused Archana Gupta had shown her OPD Register again said OPD register was shown by husband of Dr. Archana Gupta but she failed to explain whether the consent letter already Ex. PW1/DA was shown at the time of her second visit. After examination of IO no other PW left to be examined, therefore, prosecution evidence was closed and case was fixed for examination of accused u/s 313 Cr.P.C.
8. During course of examination of accused Muni u/s 313 Cr.P.C she controverted all the allegations as alleged against her and submitted that Ruby and her father were tenant in her house and when she wanted 13 14 to get her property vacated they started making false allegations against her and her son. They also wanted to extort money. It is further submitted that she was innocent and falsely implicated in this case.
9. During examination of accused Dr. Archan Gupta u/s 313 Cr.P.C she admitted that on 12.6.04 she was running a Nidan Kender at 9A Pocket I, Dilshad Garden, Delhi and was working as Obstetrician and Gynecologist and on that day she examined one Ms. Ruby vide prescription slip Ex. PW3/A and on the top of the prescription slip the word (MTP done) was written by her. Slip bearing her signature at point A but she denied that Kumari Ruby was a minor, however she told her age about 19 years. She also denied that MTP was done without the consent of Ruby, however, she gave her consent vide consent letter Ex. PW1/DA which is placed on record. She further stated that after registration of this case some police officials from PS Seema Puri came to her clinic and disclosed about the registration of this case and also called her at PS. On the basis of directions of police official she alongwith her husband Rajiv Gupta went to PS alongwith all the requisite documents i.e consent letter bearing thumb impression of Ruby and also produced MTP Act and made them satisfied that no offence 14 15 was committed by her but after 2-3 days IO again visited her clinic and demanded money for deleting her name from the list of accused, when she refused to make the payment she was falsely implicated in this case in connivance with Kumari Ruby. She further stated that prosecutrix Ruby visited her clinic in the company of one male and one female and they introduced themselves newly married husband and wife and female was her sister. She further stated that Kumari Ruby, her husband disclosed that at this early juncture they do not want to have a child and requested for termination of pregnancy. They were also made aware of consequences and on understanding the same they gave their consent by putting their thumb impression on the consent form Ex. PW1/DA. She was innocent and falsely implicated in this case. She also desire to lead defence evidence, therefore, case was fixed for defece evidence.
10. Ravi Kant, Finger Print Expert from the office of Finger Print Bureau Malviya Nagar appeared as DW1 and brought the report no. 204/C.W/F.P.B Delhi dated 5.2.10 and deposited the same in the court. He further stated that till the report remained in his possession no one has tampered with it. During his cross examination he admitted that he produced the report in the court in unsealed cover and it was handed 15 16 over to him in the Finger Print Bureau in an unsealed cover.
11. DW2 Sh. K.N. Singh, Finger Print Expert and deposed that on receipt of letter dated 23.1.2010 from this court vide FPB diary no. 76/CW/FPB dated 1.2.2010 by virtue of which he was directed for comparison of thumb impression and expert opinion thereon. The same was assigned to him for analysis/comparison of thumb impressions and expert opinion. After examination of the questioned right thumb impressions (mark Q1) with the specimen right thumb impression mark S1 to S7. He compared questioned thumb impression mark Q1 was found identical with specimen thumb impression mark S2 to S7 and specimen thumb impression S1 was a blurred impression so it could not be compared with the questioned thumb impression. His detailed report is Ex. DW2/A bearing his signatures at point A. He further submitted that till the documents remained in his possession no one had tampered with it. He also stated that he had put his initial on marked S1 to S7 as well as on marked Q1. He had seen all the above said documents on the judicial file and are in the same condition which were 16 17 produced before him for examination.
12. Dr. Archana Gupta examined herself as DW3 and deposed that on 12.6.04 she was working as gynecologist at 9A Pocket I Dilshad Garden. On that day patient Rubby was brought to her clinic by her husband and one female disclosed by her as her sister in law with alleged history of pregnancy occurred due to failure of contraceptive device which was being followed by the female/patient. She shown her willingness to get her MTP done and on the basis of her willingness she prepared the requisite documents filled up the consent form on which the thumb impression of patient (Ruby ) and signatures of her husband Bachu were obtained. The said consent letter is Ex. PW1/DA. She also produced the medical prescription/clinical record maintained by her before and after conducting the MTP which is Ex. PW3/A bearing her signatures at point A on each page. She also deposed that she conducted the MTP under the provisions of MTP Act 1971. Photocopy of the same is Ex. DW3/A. She further stated that patient never disclosed to her that pregnancy had occurred due to 17 18 rape/sexual assault committed by any one. She also placed on record Form B bearing no. 470 issued on 8.1.02 by the then Director of Directorate of Family Welfare having its office at Malka Ganj, Delhi-110007.
13. During her cross examination by Ld. Addl. PP for state she stated that normally doctors do not used to verify any documents when any patient brought before them for abortion. As per MTP Act the consent of the patient is required. She further stated that she had not asked for any document with regard to the age of the patient and only on physical appearance qua the age disclosed by the patient and others being satisfaction that patient appears to be more than 18 years she normally used to terminate the pregnancy on the consent of the woman and she also admitted that in the present case she has not asked Ruby to produce any date of birth certificate/document with regard to her residential address and also not verified about the relation of the person who were with her. She further stated that upon verification she (Ruby) told her that she wanted to get her pregnancy terminated due to financial 18 19 constrained as she was working as a maid servant. She also failed to explain the identity of accused Muni present in the court. However, it is stated that she knew co-accused Muni as her patient, as she usually used to come to her clinic. Thereafter, defence evidence was closed and case was fixed for final arguments.
14. I have heard the arguments on behalf of ld. counsel for both the accused and Ld. Addl. PP for state.
15. Ld. counsel for accused Muni submitted that before convicting the accused under any penal law it is the duty of the prosecution to prove its case beyond reasonable doubt and in the present case, not even an iota of incriminating fact is placed on record against accused Muni. It is further submitted that co-accused Sonu Sharma has already been acquitted by the Juvenile Court.
16. In support of his contentions he disclosed many contradictions and confrontations in the testimony of PW1 prosecutrix, PW2 and PW3 19 20 mother and father of prosecutrix and these contradictions alone are sufficient to demolish the case of the prosecution which are as follows:
(i) In the examination in chief of prosecutrix she explained three instances of committing rape upon her by co-accused Sonu Sharma and on each and every instance she specifically stated that she was raped by accused Sonu in the absence of her mother co-accused Muni on the pretext of marrying with her.
(ii)Prosecutrix disclosed her age on the day of incident as 15 years however, in her ossification test conducted by PW9 Dr. Suchi Bhutt her age was opined between 18-19 years. Factum of age i.e 18-19 years is further corroborated during the cross examination of (PW2 mother of prosecutrix) wherein she stated that she had come to Delhi from Bangladesh about 20 years ago and on those days she was pregnant by two months and in pursuant to said pregnancy Ruby (prosecutrix) was born which again proved that Ruby was about 19 years old on the day of incident.
(iii)The testimony of prosecutrix does not inspire confidence as she stated 20 21 that she did not know Bachu however on the consent letter Ex. PW1/DA name of Bachhu is mentioned and he also signed the said consent letter and his thumb impression was also obtained. During her cross examination she further stated that she of her own did not disclose the factum of commission of rape upon her before Doctor Archana Gupta which, raises serious doubt in the credibility of testimony of prosecutrix.
(iv)As per record the case was registered on 30.8.04 and this fact is also corroborated by prosecutrix PW1 but during cross examination of PW3 father of prosecutrix stated that Ruby was taken inside and injection was given to her due to that she became unconscious. He sent his son Javed to ascertain about well being of her daughter. Accordingly his son went there and saw Ruby in unconscious condition at the house of Ruby. Muni sent them in a rickshaw after handing over some medicine and prescription slip to Ruby. Swelling was noticed on the face of Ruby.
He alongwith his wife took her to PS Seema Puri and narrated the entire incident to the police official and report was lodged on the statement of Ruby but on perusal of the record and testimony of PW1 it appears that Ruby was aborted on 12.6.04 and she filed complaint on 30.8.04. The testimony of PW3 appears to be totally in contradictions with the 21 22 testimony of PW1, therefore, no reliance can be placed on the testimony of PW's.
(v)The testimony of PW2 is a hearsay evidence. She deposed only on the basis of story narrated by PW1 and same is also not in corroboration with each other.
(vi)The testimony of police officials also does not inspire confidence as IO has also not conducted the investigation as per procedure established by law. Despite of the fact that Dr. Archana Gupta intended to hand over the consent letter Ex. PW1/DA, IO had not taken the same, had the consent form would have been taken in possession by the IO no case could have been investigated against Dr. Archana Gupta.
(vii)Testimony of PW1 again become unworthy of credit on the ground that she stated before the court that she had not put her thumb impression on the Ex. PW1/DA however, DW2 Sh. K.N. Singh, Finger Print Expert opined that after examination of questioned right thumb impression with the specimen thumb impressions they all were found identical except S- 1 which could not be compared due to blurred thumb impression and the 22 23 report is Ex. DW2/A.
(viii)PW4 joined the investigation with ASI Gyan Prabha and took Sonu Sharma to GTB hospital for his medical examination.
(ix)PW6 is a formal witness who had recorded FIR Ex. PW1/A. PW7, PW8 both identified the signatures of respective doctors on the MLC of accused as well as of prosecutrix. PW9 opined the age of prosecutrix between 18-19 years vide his report Ex. PW9/A. PW10 is the IO who had corroborated the testimony of all other police officials and in view of the testimony of all the PW's it has become crystal clear that prosecution could not succeeded in proving its case beyond reasonable doubt against the accused persons.
17. Ld. counsel for accused further pleaded that the law is settled that conviction cannot be passed on an uncorroborated testimony of prosecutrix in each and every case and also placed his reliance on a decided case cited as Dinesh Jaiswal Vs. State of M.P 2010 (2) 311 wherein it is observed as under:
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"That the evidence of the prosecutrix was liable to be believed save in exceptional circumstances. There can be no quarrel with this proposition but to hold that a prosecutrix must be believed irrespective of the improbabilities in her story, is an argument that can never be accepted. The test always is as to whether the given story prima facie inspires confidence, therefore it was opined that the facts of this case is indeed an exceptional one."
and accordingly as per facts of the case in hand it has become crystal clear that testimony of prosecutrix does not inspire confidence and conviction cannot be based without its corroboration.
18. Reliance is also placed on a decided case cited as Abbas Ahmad Choudhary Vs. State of Assam 2010(2) 308 and in this case also the same principle were discussed.
19. Ld. counsel for accused Archana Gupta pleaded that no ingredients for the offence u/s 313 IPC are brought on record by the prosecution. Admittedly MTP was done by virtue of the provisions of Medical Termination of Pregnancy Act 1971 and also placed reliance on the provisions of section 3 and section 4 of the said Act. Section 313 of IPC reads thus :
"Causing miscarriage without woman's consent-24 25
Whoever commits the offence defined in the last preceding section without the consent of the woman, whether the woman is quick with child or not, shall be punished with (imprisonment for life), or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
Section 3 and 4 of Medical Termination of Pregnancy Act reads thus:
"3. When pregnancies may be terminated by registered medical practitioners (1)Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act. (2)Subject to the provisions of sub section (4) pregnancy may be terminated by a registered medical practitioner.
(a)Where the length of the pregnancy does not exceed twelve weeks, if such medical practitioner is, or
(b)Where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are, of opinion, formed in goods faith that-
(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave 25 26 injury to her physical or mental health, or
(ii)there is a substantial risk that if the children were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.
Explanation 1: Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.
Explanation II:Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.
3. In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in sub section (2), account may be taken of the pregnant women's actual or reasonably forseeable environment.
4. (a)No pregnancy of a woman, who has not attained the age of eighteen years, or, who having attained the age of eighteen years, is a(mentally person), shall be terminated except with the consent in writing of her guardian.
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(b)Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman."
20. On bare reading of the sub section (1) of S (3) of MTP Act it is established that the provisions of MTP Act are having over rider effect on the provisions of Indian Penal Code for which she is charged or under any other law for the time being in force, if any pregnancy is terminated in accordance with the provisions of this act and sub section (2) clause (a) authorized the registered medical practitioner to terminate the pregnancy where the length of pregnancy does not exceed twelve weeks, if such medical practitioner is, of opinion in good faith that the continuance of pregnancy would involve a risk to life of the pregnant woman or of grave injury to her physical or mental health and explanation II appended with section (3) reads that where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. Sub section 4 clause (a) and (b) of section 3 reads thus :
4. (a)No pregnancy of a woman, who has not 27 28 attained the age of eighteen years, or, who having attained the age of eighteen years, is a(mentally person), shall be terminated except with the consent in writing of her guardian.
(b)Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman."
and in the present case factum of age i.e 18-19 years is proved by PW9 who had specifically opined that on the basis of X-ray plate examined by him the age of Ruby is about 18-19 years and the factum of obtaining consent of woman is duly proved by DW2 who had specifically identified the thumb impression of Kumari Ruby on the consent form Ex. PW1/DA which clearly goes to show that MTP was done totally in conformity with the provisions of section (3) of MTP Act. Section (5) of said Act further provides that no termination of pregnancy would be made in accordance with this Act at any place other than a hospital established or maintained by the Government or a place for the time being approved for the purpose of this Act by the Government or a District Level committee constituted by that Government with the Chief Medical Officer or District Health Officer as the Chairperson of the said Committee and in confirmation of the aforesaid provisions Form B issued by Directorate of 28 29 Family Welfare dated 8.1.02 is placed on record which is Ex. DW3/B wherein it is certified that the Nursing Home/clinic titled as Nidaan Kendra working at 9-A, Pocket -9, Dilshad Garden, Delhi has been approved by the Directorate of Family Welfare to carry out medical termination of pregnancy as per MTP Act 1971. It is not denied that Dr. Archana Gupta is not a registered medical practitioner duly registered in the medical council as defined under clause (d) of section 2 of the Act :
"registered medical practitioner" means a medical practitioner who possesses any recognized medical qualifications as defined in clause (h) of section 2 of the Indian Medical Council Act 1956 (102 of 1956) whose name has been entered in a State Medical Register and who has such experience or training in gynecology and obstetrics as may be prescribed by rules made under this Act."
and this fact is not denied that Dr. Archana Gupta was not a registered medical practitioner however, she placed on record all the original certificate in support of her contention as being a registered medical practitioner.
21. On contrary Ld. Addl. PP for state argued the matter against co- accused Muni and co-accused Archana Gupta respectively. Ld. Addl. PP for state pleaded that prosecution placed sufficient incriminating 29 30 evidence to prove its case for the offence u/s 376/313 IPC r/w 109 IPC against co-accused Muni. In support of her contention she submitted that PW1 prosecutrix during cross examination by Ld. Addl. PP for state specifically stated that accused Muni used to confine her in a room with her son Sonu Sharma where accused Sonu Sharma used to commit rape on her. She also stated that co-accused Muni took her in the clinic of Dr. Archana Gupta and got her pregnancy terminated and co-accused Muni also gave assurance to get her marry with her son Sonu Sharma which she denied. Subsequently the testimony of PW1 is further corroborated by PW1 mother of prosecutrix as well as PW3 Abdul Kalm. During cross examination of doctor Archana Gupta when she appeared as DW3 question was put to her as to whether accused Muni present in the court is the same lady who accompanied Ruby on 12.6.04 at the time of conducting abortion to which she replied that she may or may not be which clearly goes to show that DW3 Dr. Archana Gupta intentionally with the sole aim to disprove the case of the prosecution answered in such a manner. However, in view of her testimony it has become crystal clear that co-accused Muni took the prosecutrix in the clinic of Dr. Archana Gupta and on the basis of her request Ruby was aborted. Factum of registration of case, factum of arrest, medical 30 31 examination of prosecutrix is duly proved by other police officials and in view of the testimony of prosecutrix itself conviction can be based and also placed her reliance on a decided case cited as "KARAN SINGH VS STATE 2009 III AD(Cr.) DHC 219" wherein it is observed as under:
"The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed consideration which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule in such cases amounts to adding insult to injury. Why should the evidence of a girl or 31 32 a woman who complains of rape or sexual molestation be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable."
22. In view of the evidence adduced by the prosecution and the observations given by their lordships in the aforesaid decided cases prosecution succeeded in proving its case beyond reasonable doubt against co-accused Muni for the offence as alleged against her and requested for conviction of co-accused Muni for the offences alleged against her.
23. Ld. Addl. PP for state also argued the case against accused Archana Gupta and submitted that accused took the plea that she is competent for conducting MTP of any patient as per procedure established in section 3 and 4 of Medical Termination of Pregnancy Act 32 33 1971 but sub section (2) of section 3 provides that pregnancy may be terminated by registered medical practitioner when he or she is of opinion found in good faith that the continuance of a pregnancy would involve such risk to the life of pregnant woman or of grave injury to her physical or mental health or there is substantial risk that if children is born it would suffer from such physical or mental abnormalities as to be seriously handicapped but in the present case accused Dr. Archana Gupta has no where explained that she formed an opinion in good faith as discussed above and thereafter conducted MTP. The case is also not squarely covered under the explanation (I) and explanation (II) appended with section 3 of the said Act. Ld. counsel for accused took the plea that case is squarely covered under explanation (II) as the pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children but on perusal of the medical record i.e prescription slip Ex. PW3/A it is no where mentioned that MTP was done due to failure of contraceptives and mere deposing by the accused in his defence u/s 313 Cr.P.C does not mean that MTP was done due to failure of contraceptives and this fact is also not disclosed by the prosecutrix or by other prosecution witnesses that MTP was done due to 33 34 these reasons.
24. Ld. Addl. PP for state also placed her reliance on the provisions of section 4 and 5 of MTP Act. Section 4 of the said act reads as follows:
"Place where pregnancy may be terminated No termination of pregnancy shall be made in accordance with this Act at any place other than-
(a)a hospital established or maintained by Government, or
(b)a place for the time being approved for the purpose of this Act by Government or a District Level Committee constituted by that Government with the Chief Medical Officer or District Health Officer as the Chairperson of the said Committee."
25. Ld. Addl. PP for state also placed her reliance on sub section (2) and (3) of section 5 of MTP Act which provides that :
"Section 3 and 4 when not to apply:
(2)Notwithstanding anything contained in the Indian Penal Code, (45 of 1860) the termination of pregnancy by a person who is not a registered medical practitioner shall be an offence punishable with rigorous imprisonment for a term which shall not be less than two years but which may be extend to seven years under that Code, and that Code shall, to this extent, stand modified.
(3)Whoever terminates any pregnancy in a place other than that mentioned in section 4 shall be punishable with rigorous 34 35 imprisonment for a term which shall not be less than two years but which may extend to seven years."
and in the present case accused neither filed the documents to prove her being a registered medical practitioner nor documentary proof as provided u/s 4 of the said Act is placed on record and in such circumstances it cannot be said that accused conducted MTP as per procedure established in the MTP Act and requested for conviction of accused.
It is further pleaded that DW3 Dr. Archana Gupta in her examination in chief stated that patient Ruby brought to his clinic with alleged history of pregnancy occurred due to failure of contraceptives process which was being followed by the female/patient, therefore, she shown her willingness to get her MTP done and on the basis of her willingness she prepared the requisite documents filled up the consent form on which thumb impression of the patient (Ruby) and of her husband Bachu were obtained. The said consent letter is Ex. PW1/DA. She also produced the medical prescription/clinical record maintained by her before and after conducting the MTP which 35 36 is Ex. PW3/A bearing her signatures at point A on each page. She conducted the MTP under the provisions of MTP Act 1971. Photocopy of the same is Ex. DW3/A. She further stated that patient never disclosed to her that pregnancy had occurred due to rape/sexual assault committed by any one and during her cross examination she stated that only on verification from patient Ruby as she told that she wanted to get her pregnancy terminated on the ground of her financial condition as her financial conditions were not good as she was working as a maid servant and on the reply of Ruby she got satisfied and agreed to terminate her pregnancy which again raises a serious doubt with regard to the satisfaction shown the accused for conducting MTP.
26. After hearing arguments on behalf of Ld. counsel for accused Archana Gupta and Muni as well arguments on behalf of Ld. Addl.PP for state, on perusal of evidence adduced by the prosecution as well as the provisions of MTP Act discussed above by virtue of which MTP of Kumari Ruby was got done and my observations are as follows: 36 37
The plea taken by Ld. Addl. PP for state that sole testimony of prosecutrix without his corroboration is sufficient to convict the accused for the offence u/s 376/109 IPC, I perused the observation given by their lordships in the decided case cited as Dinesh Jaiswal Vs. State of M.P 2010 (2) 311 wherein it is observed that evidence of prosecutrix liable to be believed save in exceptional circumstances and to hold a prosecutrix must be believed irrespective of the improbabilities in her story, is an argument that can never be accepted.
In the present case prosecutrix duly failed to establish the involvement of accused Muni in abating the offence of rape allegedly committed by co-accused Sonu Sharma who has already been acquitted by the Juvenile Court. The testimony always is as to whether the given story prima facie inspire confidence and in my view the present matter is indeed an exceptional one. In such circumstances, I am of the considered view that prosecution failed to prove its case beyond reasonable doubt against accused Muni.
On perusal of provisions of sub section (4) of section (3) of MTP Act by 37 38 virtue of which MTP can be done on the basis of the consent given by patient subject to the condition that she should have been attained the age of 18 years and also competent to gave her consent and in the present case age of the prosecutrix is proved to be 18-19 years and the consent form duly filled up bearing thumb impression of prosecutrix is also proved. In such circumstances I am not in agreement with the contention of Ld. Addl. PP for state that doctor has to satisfy on the ground as mentioned in clause 1 and 2 of sub section (B) of sub section (2) of section (3) of MTP Act as discussed above. Accordingly, I hold that Dr. Archana Gupta has conducted MTP within the purview of provisions of MTP Act and hence with the procedure established therein. Requirement of section 4 i.e place where the pregnancy may be terminated is recognized or not is also proved as Form B duly issued by Directorate of Family Welfare was issued on 8.1.02 showing therein registration no. 470 dated 8.1.02 is also placed on record. Factum of registration of Dr. Archana Gupta in the Medical Council and having requisite qualifications is duly proved . In such circumstances, I am of the considered view that prosecution could not succeeded in proving its case against accused Dr. Archana Gupta also.38 39
27. In view of the aforesaid discussion and on perusal of the evidence adduced by prosecution as well as provisions of Medical Termination of Pregnancy Act 1971 discussed above I am of the considered view that prosecution failed to prove its case beyond reasonable doubt against both the accused persons. Therefore, accused Dr. Archana Gupta w/o Dr. Rajiv Gupta is acquitted for the offence as alleged against her u/s 313 IPC and accused Muni w/o late Udaivir Singh is also acquitted for the offence u/s 376/313/109 IPC as alleged against her. Their bail bond cancelled, sureties be discharged. File be consigned to the record room.
(B.S. CHUMBAK) ASJ-3/North East District KKD/Delhi Announced in the open court on 26.02.10 39 40 FIR No.383/04 PS Seema Puri 26.02.10 Present: Ms. Neelam Narang Ld. Addl. PP for state.
Both accused are on bail.
Sh. R.S. Raghav Advocate on behalf of accused Archana Gupta.
Vide separate detailed order accused Dr.Archana Gupta is acquitted for the offence as alleged against her u/s 313 IPC and accused Muni is also acquitted for the offence u/s 376/313/109 IPC. Their bail bond cancelled. Sureties be discharged. File be consigned to the Record Room.
(B.S. CHUMBAK) ASJ-3/North East District KKD/Delhi:26.02.10 40