Delhi District Court
Sh. Yashwant Kumar Jha vs The State on 30 May, 2014
In the court of Ms. Ina Malhotra, District & Sessions Judge
South East : Saket Courts, New Delhi
Crl. Appeal No. 41/14
(ID No. 02406R0061202014)
Sh. Yashwant Kumar Jha
S/o Shri Mahakant Jha
R/o D4, Harkesh Nagar, New Delhi.
.... Appellant
V E R S U S
The State
....... Respondent
Appeal presented on : 12.03.2014
Arguments concluded on : 30.05.2014
Judgment on : 30.05.2014
J U D G M E N T
This appeal impugns the order of conviction under Section 304A IPC and the sentence to undergo rigorous imprisonment for a period of 18 months along with payment of fine of Rs. 5,000/.
2. Brief facts of the case are that a lady named Gayatri was found dead in a clinic operated by the accused. Blood stains and injection marks were noticed on her left hand. Her husband Sh. Ranbir Singh Verma, a labourer, gave a written complaint alleging that the deceased was one and a half months pregnant. On 13.05.1996 Crl. Appl. No. 41/14 Yashwant Kr. Jha V. State Page...1 of 6 when he returned from the work, his wife told him that she did not want to go through with the pregnancy and that she had consulted Dr. Yashwant of Jagdamba Polyclinic and he had called her on 14.05.1996 for termination of the pregnancy. The complainant alleged that the next day he went to work and received information that his wife had expired at Jagdamba Polyclinic. On rushing to the clinic, he found the dead body of his wife. He has stated that his wife died due to administration of a wrong injection and for want of sufficient or proper facilities at the clinic to carryout the termination. He has further stated that the appellant/accused acted rashly and negligently while conducting the procedure of termination on his deceased wife.
3. On the basis of his statement, the FIR under Section 304A IPC was registered at PS : Okhla Industrial Area. During investigation, the diploma certificate of the accused was seized. A team of doctors from AIIMS headed by Dr. O.P. Murthy inspected the clinic. After conclusion of the investigation, the challan under Section 304A IPC was filed. The trial court upon appraisal of the evidence on record came to the conclusion that the accused was neither qualified, nor was his clinic equipped with the requisite infrastructure for conducting MTP (Medical Termination of Pregnancy).
4. The said order of conviction/sentence has been impugned by the appellant on the plea that the deceased had consented to the risk Crl. Appl. No. 41/14 Yashwant Kr. Jha V. State Page...2 of 6 of any harm that may be caused during the termination. It is stated that the accused/appellant has been wrongly framed by his landlord under whom the complainant is also one of the tenants. It is also stated that though PW1 was recalled for further crossexamination but he was not available. The IO who had seized the injections, bottles, syringe, educational certificates etc. has not been examined by the court. Two people who had brought the deceased to the appellant's clinic and were allegedly present on the spot have not been examined in the present case. The toxicology report has also not obtained and therefore the prosecution's case against the accused/appellant suffers from gave infirmities and lack of evidence. It is further argued that even for the sake of argument if it is presumed that appellant had carried out the abortion, yet no rash and negligence can be attributed as all reasonable care and precaution were taken.
5. The appellant has also submitted that he is a recognised Medical Practitioner and holds a DEMS (Diploma in Electro Homoepathy Medical System) certificate. He has been practicing for eight years prior to the incident and since the deceased was only six weeks pregnant, no violation of the MTP act was done. In the first trimester of pregnancy, the same can be terminated by methods involving minisuction, mini abortion and vacuum aspiration, which can be conducted without any anesthesia. The procedure can be Crl. Appl. No. 41/14 Yashwant Kr. Jha V. State Page...3 of 6 conducted as an out patient and takes about 10 minutes to complete. It is argued that there is no mens rea involved and the facts and circumstances of the case do not constitute the charge of death of a patient by negligence. The appellant also impugns the observation of the medical board.
6. While doctors may be given the protection against any of their action resulting in risk as in the present one, what makes the accused guilty of the offence that he was not a qualified to conduct a medical termination of pregnancy. There was not enough infrastructure available with him and neither any backup to deal with a situation giving rise to a medical emergency which in the present case had arisen. The death in this case was caused due to shock from attempting abortion per vagina which is sufficient for death in ordinary course of nature (specially when attempted or done on an unanaesthetisted patient by unqualified and untrained person). The doctors who visited the clinic were also of the opinion that the facilities were insufficient and the place was unfit to carry out the MTP.
7. Given the facts of the case that the accused took it upon himself to conduct a procedure which he was neither qualified nor authorized to do, and which unfortunately took the life of a young woman, the order of conviction cannot be assailed. The accused has Crl. Appl. No. 41/14 Yashwant Kr. Jha V. State Page...4 of 6 been sentenced to rigorous imprisonment for 18 months with a fine of Rs. 5,000/. In default of payment of fine, for a further period of simple imprisonment of two months. I am however inclined to modify the said sentence and reduce it to rigorous imprisonment of one year, while enhancing the fine to Rs. 10,000/. In default of payment of fine, the appellant shall undergo SI for a further period of 2 months.
8. Appeal disposed off upholding the conviction and modifying the sentence.
9. Copy of Order along with the TCR be sent back.
10. File be consigned to Record Room.
Announced.
(Ina Malhotra) District & Sessions Judge South East, Saket Courts New Delhi 30.05.2014 Crl. Appl. No. 41/14 Yashwant Kr. Jha V. State Page...5 of 6 Crl. Appeal No. 41/14 Present : Appellant with Counsel Ld. Addl. Public Prosecutor for the State Vide separate Judgment, the appeal is disposed off in terms thereof. The appellants/accused is taken into custody vide separate custody warrant. Bail bonds stands cancelled. Surety discharged. Documents, if any, be released.
Copy of Order along with the TCR be sent back.
File be consigned to Record Room.
(Ina Malhotra) District & Sessions Judge South East, Saket Courts New Delhi 30.05.2014 Crl. Appl. No. 41/14 Yashwant Kr. Jha V. State Page...6 of 6