Delhi District Court
State vs Kiran Srivastava on 21 August, 2025
IN THE COURT OF DR. SAURABH KULSHRESHTHA,
ADDITIONAL SESSIONS JUDGE-03: WEST DISTRICT,
TIS HAZARI COURT, DELHI.
CNR No. DLWT01-000598/2011
SC No. 57757/2016
FIR No. 12/2011
PS: Ranhola
State v. Kiran Srivastav
In the matter of:
State
(NCT of Delhi)
Versus
Kiran Srivastav
W/o Late Shri Vipin Srivastav
R/o C-645, Sangam Vihar,
New Delhi. ......Accused
Date of Institution : 06.04.2011
Date of Reserving Judgment : 31.07.2025
Date of Pronouncement : 21.08.2025
Decision : Convicted
JUDGMENT
1. Accused Kiran Srivastav has faced trial in the present case for the commission of offences punishable under sections 313, 314, 315, 304, 468, 471 of the Indian Penal Code and section 27 of the Delhi State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 1 of 61 Medical Council Act, 1997.
Factual Background
2. The facts, as they have unraveled, narrate a sordid tale, where a gullible victim fell prey to quackery and a precious human life was lost on account of the culpably reckless actions of an unqualified, fake medical practitioner. It is all the more lamentable that this fiasco happened in the twenty first century under the nose of the authorities, in the heart of the national capital, which otherwise boasts of a phenomenal medical infrastructure coupled with a stringent regulatory framework. Coming to the prosecution version, Ms. Mithlesh, the wife of the complainant Sh. Ramesh Kumar was pregnant and in September 2009 she was running in her fourth month of pregnancy. On 22.09.2009, she experienced abdominal pain and the complainant took her to Jai Mata Poly Clinic, at Kumhar Colony, Vikas Nagar, Delhi which was being run by the accused Kiran Srivastav. The accused prescribed certain medications to Ms. Mithlesh and advised her to return for a follow-up consultation on the next day. On 23.09.2009, the accused again examined the wife of the complainant and advised that she was suffering from pregnancy related complications and she needs to be operated upon, however the operation posed no danger to her life. The accused accordingly admitted the wife of the complainant in her clinic and performed surgical termination of pregnancy and she was discharged on 24.09.2009. On 25.09.2009, the wife of the complainant again experienced severe pain, whereupon she was re-admitted by the accused State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 2 of 61 at her clinic. On 26.09.2009, when the condition of the wife of the complainant deteriorated further, the accused advised the complainant to take her to Family Hospital, Sant Pura. The doctors at Family Hospital, Sant Pura, however, advised the complainant to take his wife to a Govt. Hospital.
3. It is further the case of the prosecution that the wife of the complainant was admitted at DDU Hospital on 26.09.2009 itself. However, her detailed MLC report was prepared only on 30.09.2009 and DD no. 27 A dated 30.09.2009 was recorded at P.S. Ranhola in this respect. The police officials reached at DDU Hospital, however the statement of the wife of the complainant could not be recorded as she was unfit for statement. The condition of the complainant's wife continued to deteriorate, and she ultimately succumbed to her condition on 07.10.2009 at DDU Hospital. DD Entry No. 8-A was registered at Police Station Ranhola in this respect on the same date. Thereafter, ASI Jai Singh recorded the statement of the complainant on 07.10.2009. The post-mortem examination of the dead body of the victim was conducted, and the cause of death was opined to be septicemia, secondary to a criminal abortion allegedly performed by an unqualified medical practitioner. Subsequently, on 10.12.2009, ASI Jai Singh submitted a request to the Delhi Medical Council (DMC) seeking an expert opinion in the matter. The Delhi Medical Council, vide its report dated 09.11.2010, concluded that the medical records of DDU Hospital, in conjunction with the post-mortem findings, clearly indicated that the State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 3 of 61 abortion procedure had been mishandled by an unqualified person. This mishandling resulted in a serious medical condition, perforated peritonitis, which progressed to septicemia, ultimately leading to the death of the patient, Ms. Mithlesh. The Council further opined that Smt. Kiran Shirivastava, an unqualified person, acted recklessly by undertaking a medical procedure which was beyond her knowledge, skill and competence, with scant regard to the life and safety of the patient and that the actions on the part of Smt. Kiran Shrivastava constitute an act of criminal negligence and the deceased expired on account of her criminal negligence. On receipt of the report of the Delhi Medical Council, the present FIR was registered on 25.01.2011.
4. During the course of investigation, it was revealed that the accused, Smt. Kiran Srivastava, had been operating Jai Mata Polyclinic while falsely representing herself to be a qualified medical practitioner. The accused was arrested from her clinic on 25.01.2011 on being identified by the complainant. In support of her purported qualifications, the accused submitted various educational and professional certificates, etc. and inter alia claimed that she had obtained a degree in BAMS (Bachelor of Ayurvedic Medicine and Surgery). However, upon verification, the said documents were found to be forged. The accused was clearly not qualified to practice modern/ allopathic medicine or to perform surgical procedures. Upon completion of the investigation, charge-sheet was filed against accused Kiran Srivastava for the offences punishable under sections 304/313/314/315/ 420/468/471 of the IPC and section 27 of the Delhi Medical Council Act.
State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 4 of 61 Charge
5. On consideration of the entire material on record, charges were framed against accused Kiran Srivastava for the offences punishable under sections 313, 314, 315, 304, 468, 471 of the Indian Penal Code and section 27 of the Delhi Medical Council Act, 1997, to which the accused pleaded not-guilty and claimed trial.
Prosecution Evidence
6. In order to prove its case, the prosecution has examined 23 witnesses.
7. PW1 Shri Ramesh Kumar is the husband of the deceased and he is the complainant in the present case. He has deposed that his wife was pregnant and was running in the fourth month of pregnancy and on 22.09.09, his wife had pain in the abdomen and he took his wife to the clinic of Dr. Kiran at Kumhar Colony, Vikas Nagar. The accused gave a medicine to his wife and sent them back. On the next day, he again took his wife to the clinic of the accused and the accused told them that his wife has to be operated and, in this operation, there is no danger to her life and the accused admitted his wife in the hospital and had done the operation on his wife. On the next day, his wife was discharged from the clinic and in the night, his wife had heavy pain in the abdomen and he made telephonic calls to the accused. In the morning on the next day, he alone went to the clinic of the accused and the accused prescribed an State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 5 of 61 injection and he purchased the injection and the same was given to his wife.
8. PW1 further deposed that on 25.09.09 he had taken his wife in the car of his neighbour Vijay Pal to the clinic of accused as his wife was feeling pain. The accused again admitted his wife. On 26.09.09, when the condition of his wife deteriorated further, the accused advised him to take his wife to Family hospital, Sant Pura. Thereafter, he reached at Family hospital, Sant Pura alongwith his wife but there the concerned doctors advised him to take her to a Govt. Hospital. Since DDU Hospital was the nearest he took his wife there and she was admitted there and her treatment continued till 07.10.09 and on 07.10.09, his wife died. PW 1 further deposed that his wife died due to the wrong treatment given by the accused. Police reached at DDU hospital and his statement was recorded to this effect which is Ex. PW1/A. He and his brother identified the dead body of his wife vide statements Ex. PW1/B and Ex. PW1/C and postmortem on the body of his wife was conducted and thereafter, the dead body was handed over to him vide receipt Ex.PW1/D.
9. PW1 further deposed that on 25.01.11, police officials of PS Ranhola came to his house and inquired from him about the accused. He accompanied the police officials to the clinic of the accused at Vikas Nagar, Uttam Nagar, Delhi which was a Poly Clinic. A lady police official was also with them at that time. Accused was sitting on the counter of the clinic and on his pointing out, she was apprehended and arrested vide memo Ex. PW-1/E and her personal search was conducted State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 6 of 61 vide memo Ex. PW-1/F by the Lady Police official. The accused was interrogated by the police officials in his presence in detail. A disclosure statement to this effect was also recorded by the police in his presence which is Ex. PW-1/G. PW 1 further deposed that his statement was recorded for a second time on 07.10.09 which is Ex. PW1/H.
10. PW2 Dr. Girish Tyagi, Secretary, Delhi Medical Council, Delhi has deposed that he had been working as Secretary at the Delhi Medical Council since 2007. On 30.12.09, a letter Mark X was received from ASI Jai Singh of PS Ranhola for seeking opinion/ permission to register a case for negligence against Dr. Kiran who was running a poly clinic by the name of Kiran Poly Clinic at D-12, Kumar Colony, Vikas Nagar, Delhi as treatment given to one Mithlesh w/o Sh. Ramesh Kumar, r/o B-337, Vikas Nagar, Delhi by Dr. Kiran resulted in her death. The case was deliberated in the Executive committee with experts and the Delhi Medical Council observed that the medical records of DDU Hospital and postmortem findings point to the mishandling of the abortion by an unqualified person resulting in serious condition of the patient in the form of perforated peritonitis which resulted in septicemia leading to death of patient Mithlesh. Therefore, the decision of the Delhi Medical Council that Smt. Kiran Shirivastava, an unqualified person, acted recklessly by undertaking a medical procedure which was beyond her knowledge, skill and competence, with scant regard to the life and safety of the patient and that the actions on the part of Smt. Kiran Shrivastava constitute an act of criminal negligence for which she is State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 7 of 61 liable to prosecuted under the provisions of the Indian Penal Code in addition to Section 27 of Delhi Medical Council, Act, 1997. The detailed opinion in this regard is Ex. PW.2/A and a copy of this opinion/ report was sent to the complainant as well as to the SHO PS Ranhola.
11. PW3 ASI Pradeep Kumar deposed that on 30.09.2009 he was posted at PS Ranhola as duty officer from 9:00 am to 5:00 pm and on that day at about 12:40 pm, he received an information from the duty HC Ram Chander of DDU hospital regarding admission of Mithlesh Kumar w/o Ramesh Kumar R/o B-379, Vikas Nagar by her husband after abortion and that she was in I.C.U. He recorded this information vide DD No. 27-A, copy of which is Ex. PW3/A and this DD was marked to ASI Jai Singh and Ct. Ranvir
12. PW4 HC Satpal Singh deposed that on 25.01.2011 he was posted at PS Ranhola as duty officer from 9:00 am to 5:00 pm and on that day at about 12:15 pm, he received a rukka from ASI Jai Singh sent by SHO Insp. Sajjan Singh with the endorsement to register a case u/s 304 IPC and section 27 of Delhi Medical Council Act 1997 and to hand over the investigation to Insp. Shambhu Dayal. Accordingly, he recorded a formal FIR 12/11 under the above-mentioned provisions. The computerized copy of the FIR is Ex. PW4/A and the u/s 65-B of the Evidence Act regarding correctness of the FIR is Ex. PW4/B. He had also made endorsement on the rukka which is Ex. PW4/C after recording FIR. Further investigation of the case was marked to Insp. Shambhu Dayal and he handed over a copy of FIR and original rukka to Insp.
State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 8 of 61 Shambhu Dayal.
13. PW5 Shri Vijay Pal Singh deposed that Ramesh Kumar and his wife Mithlesh are his neighbours and on 25.09.2009, Ramesh requested to take his wife to the clinic of Dr. Kiran in his car as Mithilesh was ill and Ramesh also told him that his wife Mithlesh was being treated in the clinic of Dr. Kiran previously. PW 5 further deposed that he took Mithlesh and Ramesh Kumar to the clinic of Dr. Kiran at Vikas Nagar, Delhi at about 9:30/10:00 am on 25.09.09 and thereafter PW5 went for his duty at Samaypur Badli and in the evening he received a telephone call from Ramesh Kumar that the condition of his wife Mithlesh had deteriorated and that she was being referred to Family Hospital at Vikas Puri and that he should reach the clinic of Dr. Kiran. PW5 further deposed that he reached the clinic of Dr. Kiran and Mithlesh was taken to Family Hospital but the doctors at Family Hospital refused to admit Mithlesh and thereafter they took Mithlesh to DDU Hospital and got her admitted there. Mithlesh was pregnant at that time. Mithlesh was treated at DDU Hospital for about 15 days but her condition did not improve rather deteriorated and she died. PW5 further deposed that he came to know that Mithlesh died due to wrong treatment given by Dr. Kiran. He met the police officials regarding this case on 25.01.2011.
14. PW6 Dinesh deposed that Ramesh Kumar is his neighbour and Ramesh told him that his wife Mithlesh was being treated in the clinic of accused Dr. Kiran which was near their house and that Mithlesh was pregnant for four months. On 25.09.09 at about 3:00 pm, Ramesh State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 9 of 61 told him that the condition of his wife had deteriorated and that she was admitted in the clinic of accused Kiran. PW6 further deposed that in the evening time at about 7:00 pm Ramesh again told him that he was taking his wife to Family Hospital from the clinic of Dr. Kiran in the car of Vijay Pal who was also his neighbour. He followed them on his motorcycle to DDU Hospital. Mithlesh was admitted in DDU Hospital but her condition did not improve and after 5-6 days of her treatment there she died. Police met in connection with this case on 29.01.11. PW 6 further deposed that he along with Vijay Pal had identified accused Kiran.
15. PW7 Ashok Kumar deposed that he runs a photo shop at the above-mentioned address. On 26.01.11, he was called by the police officials of PS Ranhola to reach at Jai Mata Poly Clinic, D-12, Saini Enclave, Vikas Nagar, Delhi which is in his neighbourhood. He went there and on the directions of the IO he took 16 photographs from various angles from his digital camera and handed over those photographs to the IO after developing the same. The said photographs are Ex. PW7/A1 to A16.
16. PW8 Shyam deposed that he is doing the work of DTP (Desk Top Publishing) and designing of various visiting cards, letter heads etc. PW 8 on seeing two visiting cards of Dr. Kiran placed on record deposed that the said cards had been designed by him by him about three years ago. The cards are Ex. PW8/A1 and A2. He further deposed that a monogram printed on the visiting cards on the left side in State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 10 of 61 green colour and words JAI MATA POLY CLINIC in red colour were got designed by Dr. Kiran from his shop. On 30.01.11, police officials of PS Ranhola had come to his shop and had shown him the visiting cards Ex.PW8/A1 and A2 and he had identified these visiting cards as the same which were got prepared from his shop on behalf of Dr. Kiran.
17. PW9 Ct. Prakash Singh deposed that on 25.01.11, he was posted at PS Ranhola and on that day he along with Insp. Shambhu Dayal and Lady Ct. Dinesh and other police personnel reached at the house of complainant namely Ramesh and they took the complainant Ramesh along with them in search of accused Dr. Kiran. He further deposed that they reached at Jai Mata Poly Clinic, D-Block, Sainik Enclave, Delhi and there on the pointing out of the complainant, accused Kiran was apprehended and arrested after interrogation vide memo Ex. PW1/E and her personal search was conducted by W/Ct. Dinesh vide memo Ex. PW1/F. Accused Kiran was sent to SGM Hospital along with W/Ct. Dinesh for getting her medically examined. Insp. Shambhu Dayal prepared site plan at the instance of complainant.
18. PW10 Dr. Komal Singh deposed that on 07.10.09 she was posted at DDU Hospital as head of the department of Forensic Medicine and on that day from 11:00 am to 12:30 pm, she conducted the postmortem on the body of the deceased Mithlesh w/o Ramesh Kumar aged 35 years female. The body of the deceased was brought by ASI Jai Singh of PS Ranhola. There was alleged history of four months amenorrhea with complaint of abdomen pain by the patient and she had State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 11 of 61 been taken to Kiran's Poly Clinic where she was given some medicine and then the patient was taken to same doctor on 23.09.09 where some surgical intervention was made and patient was discharged on 24.09.09. The patient's condition deteriorated and the patient was taken back to Dr. Kiran on 25.09.09 where she was referred to Family Hospital Sant Pura. On 26.09.09 from there she was referred to DDU Hospital at 12:37 am. PW 10 also deposed with respect to the observations made during postmortem. PW10 further deposed that in her opinion cause of death was septicemia secondary to the criminal abortion conducted by an unqualified doctor in case of criminal medical negligence. All wounds were ante-mortem in nature. Time since death consistent to the hospital record. Her detailed postmortem report is Ex. PW10/A which is in her handwriting and bears my signatures at point A. Blood in gauze piece was preserved and handed over to the IO.
19. PW11 Ct. Jitender deposed that on 23.02.2011 he was posted at PS Ranhola and on that day on the direction of the IO he took exhibits of this case which were contained in one parcel along with a letter addressed to CDMO to the office of CDMO Paschim Vihar vide RC No. 17/21/11 after obtaining the same from the MHCM and after deposing the said parcel in the office of Chief District Medical Officer (CDMO), he handed over the acknowledged copy of RC to MHCM. He further deposed that so long as the parcel of exhibits remained with him nobody had tampered with the same.
State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 12 of 61
20. PW12 Dr. Sunita Seth, Junior Specialist, Obs. and Gynae., DDU hospital, Delhi, deposed that on 26.09.09 patient Mithlesh Kumari was brought to the DDU hospital with alleged history of abdominal distention and breathlessness into one day; M. H. 4/30 days; Obstetric history P3L3A2 all full term normal deliveries; Last was four months abortion in a private hospital in Vikash Nagar; No significant past illness and on examination, her general condition was poor; Per abdomen tenses guarding plus, rigidity plus; per speculum, foul smelling discharge plus; On per vaginum examination uterus 12-14 weeks, fixed as closed; Bilateral adnexa mass with restricted mobility; X-Ray chest Gas under
diaphragm; Laparotomy was done on 26.09.09; Per op findings uterus 14 to 16 weeks foul smelling discharge 500 to 600 ml present; Sigmoid cotton of 12 cm in uterus; gangrenous, multiple perforation in the uterus; decision for hysterectomy and colostomy taken and done. PW12 further deposed that the patient was examined by Dr. Anjali Sirohi who has left the hospital and her present whereabouts are not known and that she had worked with Dr. Anjali Sirohi and she can identify her handwriting and signatures as she has seen her writing and signing during the course of her duties. PW 12 further deposed that the MLC prepared by Dr. Anjali Sirohi is Ex. PW12/A and the nature of injuries is grievous.
21. PW13 Dr. Kailashi Shekhar, CMO, NFSG office of Chief District Medical Officer, West District, Paschim Vihar, New Delhi, deposed that he has been working at the above-mentioned office since 1998 and in February 2011, an opinion was sought by SHO PS Ranhola State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 13 of 61 regarding instrument and medicines seized in this case. A team comprising of Dr. Anil Lata Batra and PW 13 was formed to give the opinion. A sealed packet duly sealed containing 17 items was received along with a letter of SHO. The seal was found intact and the packet was opened by Dr. Anil Lata Batra and it was found to contain some articles including some medicines. PW 13 deposed that they were of the opinion that stethoscope, B.P. mentioning instrument and torch mentioned at serial no. 1, 2 and 4 could be used for medical purpose and steel box mentioned in the report could be used for surgical operation purpose and all injections and medicines found in the packet were allopathic medicines and item mentioned at serial no. 11 was sterile water for injection and article mentioned at serial no. 13 was scalp vein set and can be used for allopathic treatment. One of the instruments out of the 17 instruments in the steel tray could not be identified. All the instruments and medicines were again sealed and returned to the IO. PW 13 further deposed that the detailed report prepared by him and Dr. Anil Lata Batra is Ex. PW13/A bearing his signature at point A and the signatures of Dr. Anil Lata Batra at point B and the signatures of the Chief District Medical officer (CDMO) Dr. B.K. Sharma at point C. He identified the stethoscope as Ex. P1; N.P. Instrument as Ex. P2; steel tray having 17 items collectively as Ex. P3/1 to Ex. P3/17 out of which one steel instrument which could not be identified is Ex. P3/17; all the medicines are collectively Ex. P4/1 to Ex. P4/14 mentioned from serial no. 1 to 14 in the list of medicines.
State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 14 of 61
22. PW14 HC Gajender Singh deposed that on 28.01.11 he was posted at PS Ranhola and on that day Insp. Shambhu Dayal IO of this case handed over copies of six Educational certificates of accused Kiran to him for verification out of which two were allegedly issued from Ayurvedic and Unani Chiktsa Parishad, Patna, Bihar and one was issued from Muzzafarpur, Bihar and three were marksheets of Hindi Sahitaya Sammelan Allahabad and the said documents are Ex. PW14/A1 to Ex. PW14/A6. Insp. Shambhu Dayal had also handed over a request letter along with the copies of degree/ certificates. PW14 further deposed that he went to Patna first and then to Muzaffarpur for verification of these certificates/ degrees. The concerned authorities gave him reports regarding certificates Ex. PW14/A1, Ex. PW14/A2 and Ex. PW14/A5 that they have not been issued from there respectively. The reports are Ex. PW14/B and Ex. PW14/C respectively. He also went to Allahabad for verification of Ex. PW14/A1, Ex. PW14/A4 and Ex. PW14/A6 but these certificates could not be verified due to holidays. He returned to Delhi on 03.02.11 and handed over the verified certificates along with the reports to Insp. Shambhu Dayal and handed over the unverified certificates to Reader of SHO PS Ranhola for sending the same through Dak.
23. PW15 HC Panchu Ram deposed that on 02.06.2011 he was posted at PS Ranhola and on that day Insp. Shambhu Dayal handed over one sealed parcel having the seal of SDA for which he made entry in register No. 19 at Sl. No. 231. On 23.02.2011 this parcel duly sealed was State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 15 of 61 sent to CDMA Paschim Vihar through Ct. Jitender Kumar vide RC No. 17/21/11 for which he made entry in register No. 19 at the same serial number. On 01.03.2011 the result of CDMA along with a parcel having seal of SK was received by him from CDMA and the same was handed over to Insp. Shambhu Dayal on the same day and he made entry in that regard in register No. 19 at the same serial number. On 18.04.2012 the case property was summoned by the court and the same was opened in the court and was re-sealed with the seal of the court and he made entry in the register in that regard. The copy of register No. 19 containing entry No. 231/11 is Ex. PW15/A. The copy of RC register containing RC No. 17/21/11 is Ex. PW15/B. Photocopy of receipt of CDMA is Ex. PW15/C. PW 15 further deposed that so long as the case property remained with him nobody had tampered with the same.
24. PW16 Lady Ct. Dinesh Kumari deposed that she was posted at PS Ranhola from September 2010 to May 2011 and in the month of January 2011, she joined the investigation in this case with Insp. Shambhu Dayal and on that day she along with SI Rajpal had gone to the house of complainant Ramesh Kumar at H. No. B-377, Vikas Nagar, Delhi and from there they took the complainant Ramesh Kumar with them and reached at the clinic of accused Dr. Kiran at Jai Mata Poly Clinic and there on the pointing out of Ramesh Kumar accused Kiran was apprehended and interrogated and arrested vide memo Ex. PW1/E and she (PW 16) conducted the personal search of the accused vide memo Ex. PW1/F. Site plan of the place of the incident was prepared at the instance of complainant by Insp. Shambhu Dayal. On the direction of State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 16 of 61 IO she took the accused to SGM Hospital for getting her medically examined and thereafter the accused was brought at the PS and the accused remained under her supervision and care in the ladies' room at PS.
25. PW17 Shri Vijender Kumar, Cashier Bihar State Ayurvedic and Unani Chikitsa Parishad, K-15, Hanuman Nagar, PO Lohia Nagar, Patna deposed that he has been deputed by Dr. Dhananjaya Sharma, Registrar of Bihar State Ayurvedic and Unani Chikitsa Parishad to depose in his place as Dr. Dhananjaya Sharma is unwell and unable to come to Delhi. He along with the Registrar Dr. Dhananjaya had checked their record after police officials of Delhi had come to enquire about the certificate Ex. PW14/A1 in the name of Kiran Srivastava w/o Mistri Lal and on 31.01.2011 Dr. Dhananjaya Sharma had issued a certificate that the certificate shown to them having No. 45262 and Surgeon No. 2136 bearing name of Kiran Shrivastava is fake. The certificate to this effect is Ex PW14/B bearing the signatures of Registrar Dr. Dhananjay Sharma at point A. PW 17 also produced a similar type of certificate issued by Dr. Dhananjaya which is Ex. PW17/A. In fact, on checking the register they found that name of one Venketeshwar Parsad Singh S/o Ram Bilas Singh appears in their register of physician at Sl. No. 2136 and the name of Surgeon at Sl. No. 45262 is Bridge Bihari Lal s/o Bahadur Chand. The certified photocopies of both the registers are Ex. PW17/B and Ex. PW17/C respectively duly attested by Dr. Dhananjaya Sharma at point State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 17 of 61 A. He identified the signatures of Dr. Dhananjaya Sharma as he had seen him signing and writing during the ordinary course of his duties.
26. PW18 HC Randhir Singh deposed that during the intervening night of 06/07.10.2009, he was posted at PS Ranhola as duty officer from 8.00 pm to 9.00 am and on 07.10.2009 at about 08.20 AM, he received information from DDU Hospital from the duty constable Ram Chander regarding death of Mithlesh w/o Ramesh Kumar r/o B-337, Vikas Nagar, Uttam Nagar who was admitted in the hospital on 26.09.2009. He recorded this information vide DD No. 8A which is in his handwriting and marked the same to ASI Jai Singh. He produced the original DD register containing DD No. 8A copy of which is Ex.PW18/A.
27. PW19 Sh. Arun Kumar Singh, Controller of Examination, BRA Bihar University, Muzaffarpur, Bihar, deposed that he has been working as Controller of examination in the above said University since 2009. He further deposed that he has seen certificate Ex. PW14/A5 placed on record allegedly signed by Sh. H.S.P. Singh having registration no. 29341 of 1997 issued in May 2002. He further deposed that as per record, Sh. H.S.P. Singh never worked in the University in the year 2002 and hence this certificate is fake. He further deposed that HC Gajender of PS Ranhola had also come to them to enquire about this certificate and he had issued verification letter that the said marksheet Ex. PW14/A5 has not been issued from their university and the said letter is State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 18 of 61 Ex. PW14/C which was issued by him after verifying the record of their university.
28. PW20 SI Raj Pal has deposed that on 25.01.2011 he was posted at PS Ranhola and on that day, he joined investigation in this case with Inspector Shambhu Dayal and on his asking he went to D-12, Sainik Enclave, Vikas Nagar, Delhi which was the clinic of the accused Ms. Kiran Srivastava. Complainant Ramesh Kumar alongwith lady constable Dinesh and constable Prakash was also present there. Accused Kiran Srivastava was arrested after interrogation vide memo Ex. PW1/F and her personal search was conducted by W/Constable Dinesh vide memo Ex. PW1/F. Inspector Shambu Dayal also prepared a site plan of the clinic. PW20 further deposed that he alongwith lady constable Dinesh and accused went to S.G.M. Hospital and the accused was got medically examined. They returned to the PS and Inspector Shambhu Dayal again interrogated the accused in his presence and her disclosure statement was recorded which is Ex. PW1/G. The accused was kept in the custody of lady constable Dinesh in the PS in a room. PW 20 further deposed that on the next day i.e. on 26.01.2011, he alongwith Inspector Shambhu Dayal and lady constable Anita took the accused to her clinic at D-12, Sainik Enclave, Vikas Nagar, Delhi and during the search of the clinic from the ground floor and first floor certain equipment, medicines and six certificates allegedly issued by Bihar University, Patna University and Allahabad University were recovered. Photographer Ashok was also called there and the photographer took the photographs State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 19 of 61 of the clinic. The medicines and the equipment were given sl. nos. 1 to 17 and were kept in a polythene and the said polythene was converted into a parcel with the help of a white cloth and was sealed with the seal of SDK and was seized vide seizure memo Ex. PW20/A. The accused also handed over her electricity bill of the said clinic which was also seized by the IO vide seizure memo Ex. PW20/B. The electricity bill is Ex. A1 (two pages). Two visiting cards of the polyclinic were also handed over by the accused to the IO which were seized vide seizure memo Ex. PW20/B. The visiting cards are Ex. PW8/A1 and Ex. PW8/A2. Seal after use was handed over to him. The articles/ medicines were also identified by him and the same are exhibited as P1 (NP instruments), P2 (steel tray), P3 (1 to 17 instruments) and P4 (1 to 14 medicines). PW 20 further deposed that accused Kiran got recovered these articles from her clinic D-12, Sainik Enclave, Vikas Nagar, Uttam Nagar, Delhi.
29. PW21 SI Mahesh Kumar deposed that he has been working as Draftsman in Crime Branch since 1991. On 16.02.2011, he was present at Rajouri Garden and reached at D-12, Sainik Enclave, Vikas Nagar, Delhi on the asking of Inspector Shambhu Dayal of PS Ranhola. It was a clinic and on the pointing of Inspector Shambhu Dayal he took rough notes of three floors of the clinic after measuring the same. There was a clinic on the ground floor and two beds were lying on the first floor and there was a residence at second floor. PW 21 further deposed that he prepared the scaled site plan of the said clinic/ residence and State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 20 of 61 handed over the same to the IO which is Ex. PW21/A and he destroyed the rough notes after preparing the site plan.
30. PW22 SI Jai Singh deposed that on 07.09.2009 he was posted at PS Ranhola as ASI and on that day on receipt of DD No. 27-A he along with one constable had gone to DDU Hospital where one lady Mithlesh was found admitted. He requested the doctor for her statement however the doctor declared the patient unfit for statement. His application is Ex. PW22/A which bears his signatures at point A and the observation of the doctor at portion X. Then they returned to the PS. Thereafter he again went to the hospital on 01.10.2009 but the doctor again declared Mithlesh unfit for statement as observed at portion X1. On 07.10.2009 DD No. 8-A was received in the PS which was regarding death of Mithlesh. PW 22 further deposed that he reached at DDU Hospital and prepared the inquest papers. Form No. 25.35 is Ex. PW22/B; brief facts are Ex. PW22/C; and his application for postmortem examination of deceased is Ex. PW22/D. PW 22 further deposed that the dead body was identified by the relatives of the deceased namely Naresh and Ramesh and their statements were recorded. After the postmortem, dead body was handed over to the relatives of the deceased vide receipt is Ex. PW1/D. He had requested the hospital authorities for supplying the relevant papers of treatment of Mithlesh vide his application Ex. PW22/E. He collected the PM report and other papers of the case. Thereafter on 30.12.2009 he made a request to Delhi Medical Council regarding the criminal negligence on the part of Dr. Kiran, at whose State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 21 of 61 clinic at Vikas Nagar the deceased had taken treatment. His application in this regard is Ex. PW22/F. Along with his application, he had submitted copy of MLC, copy of PM report, statement of the husband of deceased and a copy of the degree of the doctor concerned for examination by Delhi Medical Council. PW 22 further deposed that in the month of November, 2010, the report from Delhi Medical Council was given which is Ex. PW4/A. The report was marked to him and after examination of the same he had submitted it before the SHO who vide his endorsement at portion X on the statement Ex. PW1/A of Ramesh Kumar which he had recorded on 07.10.2009 had directed the DO to register the case and case FIR No. 12/11 was registered and further investigation was given to Insp. Shambhu Dayal. PW 22 further deposed that he had also handed over the photographs of the clinic of the Dr. Kiran which he had taken during the course of enquiry. The said photographs are Ex. PW22/G1 to Ex. PW22/G7. PW 22 further deposed that during his enquiry it was alleged by the husband of the deceased that his wife had taken treatment for two/ three days from the clinic of Dr. Kiran and her condition deteriorated after taking the medicine prescribed by the doctor before her admission in DDU Hospital.
31. PW23 Insp. Shambhu Dayal is the IO of the case and he deposed that on 25.01.2011 he was posted at PS Ranhola and after registration of the present case investigation was given to him. He further deposed that he first reached at the house of the complainant Ramesh Kumar and then along with the complainant he reached at the place of the incident which was Dr. Kiran's Clinic at D-12, Sainik State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 22 of 61 Enclave, Vikas Nagar, Delhi where Ramesh identified Dr. Kiran sitting in the clinic. He made enquiry from Dr. Kiran and she admitted that she had given treatment to the deceased Mithlesh. Lady Constable Dinesh was also with him. He arrested the accused Dr. Kiran vide arrest memo Ex. PW1/E. The personal search of accused Kiran was conducted by Lady Ct. Dinesh and personal search memo Ex. PW1/F was prepared. The disclosure statement of the accused was recorded which is Ex. PW1/G. PW 23 further deposed that he had seized two visiting cards of the accused's clinic vide seizure memo Ex. PW20/B on which Dr. Kiran BAMS was written along with address of the clinic Jai Mata Poly Clinic. The cards are Ex. PW8/A1 and A2. PW 23 further deposed that from the clinic he had also seized various instruments and the medicines lying in the clinic which were total 17 in number and seizure memo Ex. PW20/A was prepared. He had also seized the electricity bill vide seizure memo Ex. PW20/B in the name of Kiran Srivastava of the address D-12, Sainik Enclave, Vikas Nagar. The said bill is Ex. A1. He had made enquiries from the accused regarding her qualification as a doctor to give treatment relating to patients of pregnancy etc. The accused produced six documents of her education qualifications which he seized vide seizure memo Ex PW23/A. He had also prepared the site plan of the place of the incident which is Ex. PW23/B. He had also got the Poly Clinic of the accused photographed from outside and inside. The said photographs are Ex. PW7/A1 to A16. The documents of accused are Ex. PW14/A1 to Ex. PW14/A6. The articles seized were deposited in the Malkhana. PW 23 further deposed that the documents of educational qualifications of the State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 23 of 61 accused were sent to various authorities to verify about their genuineness and the report Ex. PW14/B of the Unani Chikitsa Parishad, Patna was received which stated that the degree No. 2136 was not issued from their Council in the name of Kiran Srivastava and was wrong. The report of Controller of Examination B.R. Ambedkar, Bihar University, Muzaffarpur Ex. PW14/C also indicated that the BAMS marksheet of Kiran Srivastava was not issued from that University. The medicines and the instruments found in the clinic of the accused were sent to the Chief Distt. Medical Officer of Delhi Government, Paschim Vihar and their report Ex PW13/A was obtained which indicated that the medicines and instruments seized were of use in allopathy treatment. PW 23 further deposed that on 16.02.2011 he had taken SI Mahesh Kumar to the clinic of the accused and SI Mahesh Kumar had taken rough notes and measurements at his instance. Later on, he had collected the scaled site plan from SI Mahesh which is Ex. PW21/A. The seized articles are exhibited as P1(NP instrument), P2 (Steel trey), P3/1 to 17 (instruments) and P4/1 to 14 (Medicines). He had recorded the statements of witnesses whenever they were joined in the investigation and after completing investigation charge sheet was filed against the accused in court.
32. PW24 Dr. Anjali Sirohi, has deposed that on 26.09.2009, she was working in DDU Hospital as Senior Resident in Gynae Department and on that day, patient namely Mithilesh Kumari, 32-year female was brought to the hospital by her husband with history of Second Trimester Abortion two days back in private hospital in Vikas Nagar. The patient complained of abdomen distension and breathlessness State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 24 of 61 for one day. On examination, PW 24 found that her general condition was poor; pulse was 130 per minute and B.P. 100/70 mm Hg; per abdomen examination - abdomen was tense, guarding and rigidity was present. On per speculum examination - foul smelling discharge was found present. On per vaginum examination - uterus was found 12-14 weeks size, bilateral adnexa had mass with restricted mobility; chest X- Ray revealed gas under diaphragm. PW 24 further deposed that the decision for laparotomy (operation) was taken in view of uterine/ bowel perforation with septicemic peritonitis (infection in blood). Thereafter, the patient was operated on 26.09.2009 and as per operative findings, it revealed uterus 14-16 weeks size, foul smelling purulent discharge, 15 cm of gangrenous intestine was removed from uterine rent; uterus had multiple perforations; fetal skull removed from the perforation rent. Therefore, the uterus was removed and colostomy was done. Thereafter patient was shifted to ICU. PW 24 further deposed that the condition of the patient and treatment given to her thereof, is mentioned in detail in case sheet which is Ex. PW12/A. PW 24 further deposed that at the time of appearance of the patient and during treatment, she suspected foul play and she conveyed the same to the head of department and on suggestion of the head of department, the matter was reported to the police and late MLC was made on 30.09.2009. Thereafter PE was closed.
Statement of the accused under section 313 Cr.P.C
33. Thereafter, the entire incriminating evidence was put to the State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 25 of 61 accused and her statement under section 313 Cr.P.C. was recorded. The accused denied the prosecution version and stated that she is innocent. The accused further stated she was not running Jai Mata Poly Clinic and one Dr. Nawab Hussain was running the said clinic and she was only working as his assistant. She further stated that she had not given any medical treatment or advice to Ms. Mithlesh or her husband and she had not conducted any operation on Ms. Mithlesh. She further stated that Dr. Nawab Hussain was initially detained by the police however, for some unknown reasons he was released and she was falsely implicated in the present case. She further stated that she may have been falsely implicated to save Dr. Nawab Hussain and the doctors of DDU hospital. She further stated that she had not given any documents relating to her medical qualifications and the same are forged and fabricated and she is only 12th standard pass. She further stated that she had not got any visiting cards prepared. The accused further stated that she has been falsely implicated in the present case.
Defence Evidence
34. The accused chose not to lead any evidence in support of her defence.
35. I have heard the Ld. Addl. PP for the State as well as the Ld. Counsel for the accused Kiran Srivastav and have given due consideration to their rival contentions and perused the record.
State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 26 of 61 Appreciation of Evidence, Analysis of Contentions and Findings:
Findings qua offence under section 304 IPC
36. The version of the prosecution is that the accused, an unqualified fake doctor, had been running Jai Mata Poly Clinic and from 22.09.2009 to 26.09.2009 she had given medical treatment to the victim Ms. Mithlesh Kumari (wife of the complainant), who was four months pregnant, and had even performed surgical termination of pregnancy upon her, as a result of which her condition deteriorated. The victim was thereafter admitted and treated at DDU hospital where she ultimately succumbed to her condition on 07.10.2009.
37. Per contra, the accused has contended that she was not the one running Jai Mata Poly Clinic and one Dr. Nawab Hussain was running the said Clinic and she was only working as the Assistant of Dr. Nawab Hussain. The accused has further contended that she had not given any medical treatment or advice to the victim or her husband and she had not performed any surgery on the victim.
38. Now coming to the evidence on record in this respect, PW1 who is the complainant in the present case has categorically deposed that on 22.09.2009 he had taken his wife (victim), who was four months pregnant, to Dr. Kiran who had given some medicine to her; and again on the next day he took his wife to the clinic of Dr. Kiran where Dr. Kiran stated that the victim needs to be operated upon and there is no State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 27 of 61 danger to her life and the accused performed the operation upon the victim; and on the next day he again went to the clinic of Dr. Kiran and she prescribed an injection which was administered to the victim. PW1 further deposed that on 25.09.2009 he had taken the victim to the clinic of the accused as she was feeling pain and the accused re-admitted her and on 26.09.2009 when her condition deteriorated, the accused advised him to take the victim to Family Hospital, Sant Pura. Ultimately the victim was admitted at DDU Hospital.
39. PW 1 was cross examined by the Ld. Counsel for the accused and the record of his cross examination is as under:
".........I have been living at the above-mentioned address for about 412/5 years. Accused did not give me any prescription for the first time but gave medicines. I did not know accused personally prior to my visit to her clinic. My wife was admitted in the morning of 23.09.09 at about 10:00 am. On 23.09.09, I alongwith my wife only visited the clinic. I had not told to the police in my statement that in the night, I had made a telephonic call to the accused and also that the accused had given me a injection. It is wrong to suggest that the accused had not given any injection to me. On 26.09.09, at about 5:00 pm, the accused had told to take my wife to the Family Hospital. We remained in the Family Hospital for about ½ hr. Then we go to the DDU Hospital. It took about 15-20 minutes in Car to cover the distance between the Family Hospital and DDU Hospital. We reached at the DDU Hospital at about 9:00 pm and at that time, my wife was not State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 28 of 61 unconscious but she was unable to stand and walk and was not in a position to talk. My wife was admitted in the DDU Hospital at about 11:00 pm and her medical reports were prepared. After leaving the clinic on 26.09.09, I have no talk with the accused again. We had not made any complaint against the accused till 26.09.09 because it was assured by the accused that my wife would recover. It is wrong to suggest that the accused has not given any treatment to my wife. It is wrong to suggest that I alongwith my wife had never visited the clinic of the accused for treatment. It is wrong to suggest that my wife had developed problems after falling from the stairs and my wife have not died due to the treatment given by the accused. I do not know the name of any medicines given by the accused. I do not know whether the police had recorded the statement of my wife while she remained in the DDU Hospital. It is wrong to suggest that I am deposing falsely and the accused has been falsely implicated in this case...."
40. Ld. Counsel for the accused could not elicit anything substantial in the cross examination of PW1 which discredits his testimony or establishes the falsity of his allegations or furthers the defence of the accused. There is nothing in the cross examination of PW1 which establishes that he has falsely implicated the accused. Neither the cross examination of PW 1 reveals any reason as to why PW 1 would falsely implicate the accused nor the accused has been able to explain any such reason otherwise. Further, no suggestions have been given to PW 1 in his cross examination that Dr. Nawab Hussain was State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 29 of 61 running the said Clinic and the accused was only working as the Assistant of Dr. Nawab Hussain, which was the primary limb of the defence of the accused.
41. In the judgment titled as Devender Kumar Singla v. Baldev Krishan Singla, reported as 2005 (9) SCC 15 the Hon'ble Supreme Court has observed that:
"......Significantly, there is also no suggestion to the complainant during cross-examination by the accused that the transaction was done on 27.7.1992 and not on 7.8.1992 as claimed by the complainant. Merely because the accused stated that he had not received the shares or that the transaction took place on 27.7.1992 in his examination under Section 313 of Cr.P.C. that is really of no consequence. The statement under Section 313 is not evidence. It is only the accused's stand or version by way of explanation, when incriminating materials appearing against him are brought to his notice.
12. Absence of any suggestion during cross examination cannot be made up by a statement under Section 313 Cr.P.C. At that stage, the prosecution does not get an opportunity to question the accused about his stand in the statement under Section 313....."
42. Accordingly, the failure on the part of the Ld. Counsel for the accused to give suggestions to PW 1 with respect to the primary limb of the defence of the accused, is a significant lapse. Therefore, the State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 30 of 61 submissions made by the accused to the effect that Dr. Nawab Hussain was running the said Clinic and the accused was only working as the Assistant of Dr. Nawab Hussain, in her statement under section 313 Cr.P.C., have no value. Admittedly there is no other positive evidence led by the accused in this respect.
43. Further the version of PW1 has also been corroborated by PW5 and PW6. PW5 and PW 6 are the neighbours of the complainant (PW 1). PW 5 has deposed that on 25.09.2009 he had taken the complainant and his wife in his car to the clinic of the accused and the complainant had informed him that his wife was being treated in the clinic of the accused previously. He further deposed that in the evening he received a call from the complainant that the condition of his wife has deteriorated and she has been referred to Family Hospital and thereafter he reached at the clinic of the accused and had taken the wife of the complainant to Family Hospital. PW5 further deposed that the staff of the accused had followed them to Family Hospital and later-on he came to know that the victim Ms. Mithlesh Kumari, died due to the wrong treatment given by the accused. PW6 has also deposed that complainant had told him that his wife was being treated at the clinic of accused Dr. Kiran and on 25.09.09 at about 3:00 pm, the complainant told him that the condition of his wife had deteriorated and that she was admitted in the clinic of accused Kiran and in the evening time when the complainant was taking his wife to Family Hospital from the clinic of State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 31 of 61 Dr. Kiran in the car of PW 5, he (PW 6) followed them on his motorcycle to DDU Hospital.
44. PW 5 was also cross examined by the Ld. Counsel for the accused. The record of the cross examination of PW 5 is as under:
"Today I do not remember the number of my car as I had purchased the second-hand car and have sold the same within six months of purchasing. On 25.09.09, total four persons had gone to the clinic of Dr. Kiran including one more lady with Mithlesh. The accused referred and we all returned on the same day on 25.09.09 approximately at about 6.00 pm. The staff of the accused Kiran detained us upto 9.00/10.00 pm in Family Hospital on 25.09.09. We reached DDU Hospital at about 10.00/11.00 pm and Mithlesh was admitted there on the same day. At the time when I was in the clinic of accused, there was another lady staff. I do not know if any prescription has been given by the accused. Police had come to my house to record my statement probably on 24/25.01.11. My statement was recorded after our identification of accused Kiran. It is wrong to say that I am deposing falsely at the instance of the complainant."
45. PW 6 was also cross examined by the Ld. Counsel for the accused. The record of the cross examination of PW 6 is as under:
"On 25.09.09 I alone went to the clinic of the accused at about 3.00 pm. I do not know what is the disease of the Mithlesh but I was sitting over there. I was alone at the time there. On 25.09.09 at the time of after 7.00 pm we took Mithlesh to the DDU State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 32 of 61 Hospital. We reached DDU hospital at 8.00 pm along with my brother-in-law. It is wrong to say that I am deposing falsely at the instance of complainant."
46. Ld. Counsel for the accused again could not elicit anything substantial in the cross examination of PW 5 and PW 6 which could discredit their testimonies. PW 5 and PW 6 have reiterated in the cross examination that the victim had been taken to the clinic of the accused for treatment. PW 5 has in fact unequivocally asserted that his statement was recorded after identification of accused Kiran. Again, no suggestions have been given to PW 5 and PW 6 in their cross examination that Dr. Nawab Hussain was running the said Clinic or the accused was only working as the Assistant of Dr. Nawab Hussain or that the accused had not given any medical treatment to the victim Ms. Mithlesh.
47. The testimonies of PW-1, PW-5 and PW-6 are clear, coherent and trustworthy and appear to be truthful. The complainant/ PW 1 had made clear allegations against the accused in his initial complaint recorded immediately after the demise of the victim, without any delay and hence there is no scope of any concoction or fabrication. Dealing with minor discrepancies in the testimonies of PWs I am of the opinion that the same are totally inconsequential and do not affect the prosecution case. It has been consistently held by the Hon'ble Supreme Court that there is bound to be some discrepancy between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 33 of 61 to jettison the evidence in its entirety. In fact, it has been held that no true witness can possibly escape from making some discrepant details and perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. Thus, trivial discrepancies and minor embellishments ought not to obliterate evidence which has otherwise been found to be reliable. Reference may be made to the judgments of the Hon'ble Supreme Court titled as Leela Ram v. State of Haryana, reported as A.I.R. 1999 SC 3717, State of U.P. v. M.K. Anthony reported as AIR 1985 SC 48, Rammi @ Rameshwar v. State of Madhya Pradesh reported as A.I.R. 1999 SC 3544 and Appabhai v. State of Gujarat reported as AIR 1988 SC 696.
48. PW1 has further deposed that on 25.01.2011, police officials of PS Ranhola came to his house and he accompanied the police officials to the clinic of the accused at Vikas Nagar, Uttam Nagar, Delhi which was a Polyclinic and the accused was sitting at the counter of the clinic and on his pointing out, the accused was apprehended and arrested vide memo Ex. PW 1/E. The police witnesses PW 23, PW 20, PW 9 and PW 16 have all deposed on similar lines. Thus the accused was herself found sitting at the counter of Jai Mata Poly Clinic which shows that she was the one running the said clinic. There is nothing substantial in the cross examination of these witnesses nor there is any other reason which persuades this Court to disbelieve their testimonies on this point. Ld. Counsel for the accused has pointed out that PW 9, who had joined investigation on 25.01.2011, has stated in his cross examination that State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 34 of 61 Ramesh was not present during one hour of investigation and accordingly Ld. Counsel for the accused has contended that this statement shows that Ramesh (complainant) had not joined investigation on that day. However, this statement only implies that Ramesh (complainant) was not present for the entire duration of one hour when the police officials were present at the clinic for investigation. Otherwise PW 9 has categorically stated that the police officials had taken Ramesh to the clinic and Ramesh had identified the accused who was sitting at the counter.
49. It is further seen that various photographs of Jai Mata Poly Clinic have been placed on record which are Ex. PW7/A-1 to Ex.PW7/A-16. The photographs of the clinic have been proved by the photographer PW7 as well as by the IO PW 23. Ld. Counsel for the accused has not been able to highlight any flaw in this respect. In one of the photographs Ex. PW7/A-1 the board of Jai Mata Poly Clinic is visible on which the name of "Dr. Kiran" has been clearly mentioned. Further two visiting cards of the accused were also proved on record as Ex. PW 8/A1 and Ex. PW 8/A2 by PW 8 who had designed/ printed the same on the instructions of the accused. The said visiting cards were seized by IO PW 23 vide seizure memo Ex. PW 20/B. It has been argued by the Ld. Counsel for the accused that PW 8 has stated that the said visiting cards were got prepared on behalf of the accused which shows that the accused had not personally gone to get them prepared and the same have been planted upon the accused. However, PW 8, during the State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 35 of 61 substantive part of his testimony, has stated that the said visiting cards were got prepared by the accused and only at the end of his testimony while identifying the visiting cards it is mentioned that they were got prepared on behalf of accused Kiran. At any rate this issue was not got clarified during cross examination of PW 8. When the entire testimony of PW 8 is viewed holistically the reasonable inference is that the visiting cards were got prepared by the accused only. Ld. Counsel for the accused has not been able to highlight any other flaw in this regard. It is seen that on the visiting cards Jai Mata Poly Clinic and the name of Dr. Kiran have been printed and it has further been specifically mentioned that "hamare yahan delivery case ki suvidha uplabdh hai". The electricity bill of the premises where Jai Mata Poly Clinic was running was also seized by the IO PW 23 vide memo Ex. PW 20/B and the same is Ex. A1. The electricity connection in the premises where the clinic was being run is also in the name of the accused which also establishes that the accused was running the said clinic and the accused has not been able to adduce any evidence to show that the same was being run by Dr. Nawab Hussain or by any other person.
50. The IO PW-23 has categorically stated in his cross examination that he had filed documents on record to establish that Jai Mata Poly Clinic was being run by the accused and these documents include electricity bills, photographs of the board of the clinic with the name of Dr. Kiran mentioned thereon and visiting cards of the clinic. However, no suggestion was given to PW23 during his cross examination that the said electricity bill and the visiting cards were not State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 36 of 61 recovered from the possession of the accused or that the photographs placed on record are fabricated or that they do not pertain to the clinic of the accused. It has further been argued by the Ld. Counsel for the accused that no public witnesses were joined during investigation when the aforesaid visiting cards, bill, etc. were recovered. First of all the non joining of public witnesses during recovery proceedings, does not, by itself, render the prosecution version doubtful. Furthermore, there is no detailed cross examination of witnesses on this point. Thus, there is absolutely no reason to disbelieve the aforesaid documents/ photographs and the testimony of the IO PW 23.
51. It is further seen that various instruments/ medicines were recovered from the clinic of the accused which were seized vide seizure memo Ex. PW20/A. Again the non joining of public witnesses during recovery proceedings, does not, by itself, render the prosecution version doubtful. Furthermore there is no detailed cross examination of witnesses on this point. The photographs Ex. PW7/A-1 to Ex.PW7/A-16 also establish the recovery of the said instruments/ medicines. In fact the photographs of the premises clearly reveal a medical set up in the clinic of the accused, which could have been used for allopathic treatment and/ or surgery. The site plan Ex. PW 21/A also depicts that the clinic was being run on the ground floor and first floor of the premises in question. The said instruments/ medicines were sent to the Chief District Medical Officer, Delhi Government, and thereafter a team comprising of PW13 Dr. Kailash Shekhar, CMO and Dr. Anil Lata Batra examined the same.
State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 37 of 61 PW13 has deposed that they were of the opinion that the stethoscope, B.P. measuring instrument and torch mentioned at serial no. 1, 2 and 4 could be used for medical purposes; the steel box mentioned in the report could be used for surgical operation purposes; all injections and medicines found in the packet were allopathic medicines; the item mentioned at serial no. 11 is sterile water for injection; and the article mentioned at serial no. 13 is scalp vein set and can be used for allopathic treatment. PW 13 identified the said instruments and medicines as Ex. P1, Ex. P2, Ex. P3/1 to Ex. P3/17 and Ex. P4/1 to Ex. P4/14. The detailed report prepared by PW 13 and Dr. Anil Lata Batra was proved by PW 13 as Ex. PW13/A.
52. In view of the material on record, it is evident that there exists not only direct oral evidence but also sufficient corroborative material to establish that the accused was operating Jai Mata Poly Clinic while falsely representing herself to be a qualified medical practitioner. The record demonstrates that she not only administered allopathic treatment but also undertook surgical procedures, particularly those related to pregnancy and childbirth. The testimony of PW-1 specifically confirms that the accused performed surgery on the victim for the medical termination of her pregnancy and also provided medical treatment to her from 22.09.2009 to 26.09.2009. The depositions of PW-5 and PW-6 further corroborate the fact that the accused rendered medical care to the victim at the said clinic. Conversely, there is no credible evidence on record to substantiate the claim of the accused that the clinic was operated by Dr. Nawab Hussain and that she merely State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 38 of 61 served as his assistant, with no involvement in the treatment of the complainant's wife. The accused has failed to produce any documentary or oral evidence in support of her version, and PW-1 has categorically denied the unsubstantiated suggestions put forth by the learned counsel for the accused in this regard. While it was argued on behalf of the accused that the complainant did not produce any prescription, medical record, or admission/ discharge documents bearing the handwriting or signature of the accused, such an argument is devoid of merit. It is contrary to reason and opposed to common sense to expect that an unqualified individual impersonating a doctor, on the strength of forged credentials, would create written records or prescriptions under her own name or signature. The absence of such documentation, therefore, is not surprising and does not, in itself, undermine the prosecution's case.
53. The MLC report of the victim Mithlesh Kumari was prepared by Dr. Anjali Sirohi and the same has been proved by PW12 Dr. Sunita Seth from DDU Hospital as Ex. PW12/A. PW24 Dr. Anjali Sirohi, who was working in DDU Hospital as Senior Resident in Gynae Department, was also examined afterwards and she has deposed that on 26.09.2009 the victim was brought to the hospital by her husband with the history of Second Trimester Abortion two days back in private hospital in Vikas Nagar. The history also corroborates the fact that surgical termination of pregnancy had been conducted by the accused upon the victim. She further deposed that decision for laparotomy (operation) was taken in view of uterine/ bowel perforation with State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 39 of 61 septicemic peritonitis (infection in blood) and thereafter, the patient was operated on 26.09.2009. Operative findings revealed uterus 14-16 weeks size, foul smelling purulent discharge, 15 cm of gangrenous intestine was removed from uterine rent, uterus had multiple perforations, fetal skull was removed from the perforation rent, and therefore, the uterus was removed and colostomy was done.
54. Coming to the cause of death of the victim, PW10 Dr. Komal Singh, HOD Forensic Medicine, DDU Hospital, Delhi deposed that she had conducted the postmortem on the body of deceased Mithlesh Kumari (wife of the complainant) and in her opinion the cause of death was 'septicemia secondary to the criminal abortion conducted by an unqualified doctor in case of criminal medical negligence and the detailed postmortem report is Ex. PW10/A. PW 10 further deposed that there was alleged history of four months amenorrhea with complaint of abdomen pain by the patient and she had been taken to Kiran's Poly Clinic where she was given some medicine and then the patient was taken to same doctor on 23.09.09 where some surgical intervention was made and patient was discharged on 24.09.09; and the patient's condition deteriorated and the patient was taken back to Dr. Kiran on 25.09.09 when she was referred to Family Hospital Sant Pura and on 26.09.09 from there she was referred to DDU Hospital at 12:37 am.
55. In her cross examination, PW 10 has stated that she came to know about the history of four-month amenorrhea with the complaint of abdomen pain and that the victim was taken to Kiran's Polyclinic where State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 40 of 61 she was given some medicines and then the patient was taken to the same doctor where some surgical intervention was made, from the inquest proceedings. Though she has stated that she came to know from the IO that surgical intervention was made by an unqualified doctor, however the fact of the matter is the cause of death has been opined as 'septicemia', secondary to the criminal abortion conducted by an unqualified doctor. It is trite that the history will have to be narrated either by the patient or by her relative or by the IO or for that matter by any other person or it may even be gathered from contemporaneous documents. A medical opinion cannot be rendered in a factual vacuum, absent the necessary historical context. PW 10 has further stated that Septicemia can develop after 48 hours of surgical intervention and through any penetration by surgical or non-surgical object. PW 24 has also stated that a patient suffering from septicemia can be cured, however, not all the patients can be cured and where septicemia has reached an irreversible stage, no treatment can cure the patient. Thus what is important is that the cause of death of the victim is in consonance with the case of the prosecution.
56. Further, another defence which has been attempted to be projected is that the victim suffered injuries on account of fall from staircase, purportedly on the premise that the case progress notes of DDU hospital and the opinion of DMC mentions history of fall from staircase. However, even as per the said history recorded therein the alleged bleeding from vagina due to fall from stairs was prior in time to State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 41 of 61 the abortion conducted by the accused. It is possible that bleeding due to fall from stairs may have been the immediate reason for the victim to seek medical assistance at the clinic of the accused. However, it was for the accused to have got this aspect clarified in the cross examination of PW 1, but apart from giving a bald suggestion no proper clarification has been sought in this respect from PW 1, during his cross examination. It was also suggested to PW 24 that the above said injury on the uterus can be caused by falling from height or from the stair case, which was again denied by PW 24. Thus there is no cogent and viable evidence on record to support this plea. Be that as it may, the accused proceeded to perform surgical termination of pregnancy despite the fact she did not possess the requisite qualifications or skills and thus this plea does not absolve the accused from liability for the botched-up abortion which has been opined to be the primary cause of death of the victim.
57. Ld. Counsel for the accused further argued that the victim expired on account of the negligence of the doctors at DDU hospital, and the accused is being made a scapegoat to save the doctors of DDU hospital. PW 24 further unequivocally denied a suggestion in this respect. Be that as it may, a mere bald suggestion, which too is unequivocally denied, does not establish the defence of the accused in the absence of any cogent and viable evidence. Again, apart from the mere self-serving ipse dixit of the accused there is not even an iota of evidence to support this plea. It was further argued that there is no document to show that the victim was admitted to DDU Hospital on 26.09.2009 and her treatment records of DDU Hospital have not been State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 42 of 61 filed. However the MLC Ex. PW 12/A and the case progress notes of DDU Hospital have been filed and they specifically mention the fact that the victim was admitted to DDU Hospital on 26.09.2009. PW 24 has clarified that at the time of admission of the patient and during her treatment, she suspected foul play and she conveyed the same to the head of department and on the suggestion of the head of department, the matter was reported to the police and late MLC was prepared on 30.09.2009. Further the details of the treatment given to the victim at DDU Hospital are also there in the testimony of PW 24. It is however astonishing to note that one of the suggestions given to PW 24 during her cross examination was that Second Trimester Abortion can be performed by any non-medico person, which she obviously denied.
58. The detailed report/ opinion of the Delhi Medical Council in the matter is Ex. PW2/A and the same has been proved by PW2 Dr. Girish Tyagi, Secretary, Delhi Medical Council. The Delhi Medical Council has observed that the medical records of DDU Hospital and postmortem findings, point to the mishandling of the abortion by an unqualified person resulting in serious condition of the patient in the form of perforated peritonitis which resulted in septicemia leading to death of patient Mithlesh; and therefore, Delhi Medical Council opined that Smt. Kiran Shirivastava, an unqualified person, acted recklessly by undertaking a medical procedure which was beyond her knowledge, skill and competence, with scant regard to the life and safety of the patient State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 43 of 61 and that the actions on the part of Smt. Kiran Shrivastava constitute an act of criminal negligence for which she is liable to prosecuted.
59. The cumulative effect of the evidence on record is, that it has been established beyond reasonable doubt, that the accused administered medical treatment to the victim, Mithlesh (the wife of the complainant), during the course of her pregnancy, and further performed a surgical procedure to terminate the said pregnancy, despite not being a qualified medical practitioner. By her own admission, the accused possessed no medical degree and had only completed education up to 12th standard. The medical history recorded at DDU Hospital corroborates these facts. The opinion of the medical practitioners leads to the irresistible conclusion that the cause of death was septicemia, secondary to the criminal abortion conducted by an unqualified doctor and the evidence on record establishes that the said unqualified doctor was none but the accused. The victim expired on account of mishandling of her abortion by the accused, who conducted a surgical procedure for termination of pregnancy which was beyond her knowledge, skill and competence.
60. Coming to the question as to what offence has been committed by the accused, it is necessary to examine the provisions of section 299 IPC and section 304 IPC which provide as under:
"299. Culpable homicide.--Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 44 of 61 is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.......
304. Punishment for culpable homicide not amounting to murder.--Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;
or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death...."
61. It stands established that the accused was not a registered medical practitioner and did not possess any degree in medicine/ surgery. By her own admission, her educational qualification was only 12th standard pass. Despite this, she not only prescribed allopathic medicines but also ventured into the highly specialized and inherently risky field of surgery and undertook a surgical abortion, which falls within the domain of trained and qualified medical professionals/ surgeons. It is trite that the accused knew that once she is performing surgical abortion on a patient the act is laden with a risk to the extent that it could have caused State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 45 of 61 death of the patient/ victim. This knowledge is to be assessed from the standpoint of a reasonable person and a bare and unsubstantiated denial by the accused would not suffice. Viewed through the lens of a reasonable person, the only rational conclusion is that the accused was aware that the surgical procedure she undertook was likely to cause the death of the victim. Had a duly qualified medical practitioner caused the death of a patient in similar circumstances due to gross negligence, the offence might have fallen within the ambit of Section 304A of the Indian Penal Code. However, in the present case, the conduct of the accused was so grossly reckless, devoid of minimal competence, and marked by such conscious disregard for human life, that the appropriate provision applicable is Section 304 Part II IPC, and not Section 304A IPC.
62. In this respect reference may be made to the following observations of the Hon'ble Madras High Court in the judgment titled as Kanagalakshmi v. Inspector of Police, Thingalur Police Station, Erode District, Crl. A. No. 583 of 2003 decided on 14.03.2011:
".......Now coming to the offence, the learned counsel would rely on a judgment of the Hon'ble Supreme Court in Juggankhan v. The State of Madhya Pradesh reported in A.I.R.1965 Supreme Court 831 to contend that at the most, the offence said to have been committed by these accused would only fall under Section 304 A I.P.C But I am not able to agree with the said argument, for the reason that in the case before the Hon'ble Supreme Court, the case was registered against a Homoeopathy doctor.
State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 46 of 61 The said doctor administered 24 drops of Stramonium and a leave of dhatura without studying its effect and the patient died of poisoning. The Hon'ble Supreme Court found that the poisonous contents of the leaf had not been satisfactorily established and thus the prosecution failed to prove that the dose given to the deceased was necessarily fatal. Therefore, the Hon'ble Supreme Court has held that Section 299 would not be satisfied as it cannot be held that the accused administered the stramonium drops and dhatura with the knowledge that he was likely by such an act to cause the death of the deceased. In those circumstances, the Hon'ble Supreme Court convicted the accused under Section 304-A I.P.C. But the facts of the present case are distinguishable. Here, admittedly, these two accused were not registered medical practitioners and did not have any experience in surgery. Surgery is not an ordinary act, which can be done by any individual. Even trained doctors at times are nervous of doing surgery because of the fear for consequences of such surgery. Here, two quacks, who did not have any medical knowledge had gone to the extent of performing surgery knowing the consequences. Thus, the act of the accused squarely falls under third limb of Section 299 I.P.C. They could be attributed with knowledge that the act of surgery is likely to result in the death. Thus, the offence said to have committed by these accused would squarely fall under Section 304 I.P.C. Therefore, in my considered opinion, the trial Court was right in convicting these appellants under Section 304 part II. I.P.C...."
State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 47 of 61
63. In view of the foregoing discussion, the inescapable conclusion is that the accused is guilty of the offence of culpable homicide not amounting to murder and is therefore liable to be convicted for the offence punishable under section 304 (Part II) read with section 299 of the Indian Penal Code.
Findings qua offences under section 312/313/314/315 IPC.
64. Now, section 312 of the Indian Penal Code penalizes the act of causing miscarriage of a woman with a child or a woman who is quick with a child, while section 313 IPC, the aggravated form of this offence, springs into operation where the miscarriage is caused without the consent of the woman. However, section 3(1) of the Medical Termination of Pregnancy Act, 1971 creates an exception in as much as it stipulates that 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 the Medical Termination of Pregnancy Act. Be that as it may, the accused is not entitled for the protection under section 3(1) of the Medical Termination of Pregnancy Act, 1971 as she was not a registered medical practitioner but only a quack/ fake doctor.
65. Coming to the issue as to when can a woman be considered as one who is quick with a child, it is pertinent to note that in the judgment titled as Ashaben v. State of Gujarat, Special Criminal Appeal State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 48 of 61 No 1919 of 2015 decided on 16.04.2015 by the Hon'ble High Court of Gujarat it was observed:
"...A woman is considered to be with child as soon as she becomes pregnant. Quickening is the name applied to peculiar sensations experienced by a woman about the fourth or fifth month of pregnancy. As stated in Modi on Medical Jurisprudence and Toxicology, at the first perception of "quickening" or the foetal movement by the mother, she is said to be "quick with the child", and occurs at any time between 18-20 weeks. This term arises from the old notion that a foetus becomes endowed with life and secures an identity apart from the mother, when the movements are felt by the mother. However, causing miscarriage of a woman "quick with child" is considered a much graver offence, than causing miscarriage of a woman "with child".....".
66. Adverting to the facts of the present case, it is stated that the victim was approximately four months pregnant at the time of the incident. However, no conclusive medical record has been proved to definitively establish the exact gestational age of the pregnancy at the time of the abortion. In the absence of clear evidence demonstrating that the pregnancy had progressed beyond 18 weeks, it cannot be held that the victim was "quick with child" within the meaning of Section 312 of the Indian Penal Code. Furthermore, it is neither the prosecution's case nor has it otherwise been established that the abortion was carried out without the consent of the victim. The facts demonstrate that the victim State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 49 of 61 consented to the procedure. Accordingly, the essential ingredients required to attract the offence under Section 313 IPC are not satisfied, and thus, the said provision is not applicable in the present case.
67. Be that as it may, the case is covered under the first part of section 312 IPC as the accused caused miscarriage of the victim who was a woman with a child, although the victim cannot be said to be a woman who was quick with a child. Section 52 IPC provides that nothing is said to be done or believed in "good faith" which is done or believed without due care and attention. In the present case, the conduct of the accused in undertaking a surgical abortion, despite being a totally unqualified person, can be said to be manifestly devoid of due care and attention. Consequently, it cannot be held that the accused acted in good faith for the purpose of saving the life of the victim, as contemplated under Section 312 IPC. Further the offence under section 312 IPC is a minor offence vis-à- vis the offence under section 313 IPC. In essence, it is nothing but the offence under section 313 IPC sans the element of lack of consent of the woman. In fact, Section 313 IPC expressly refers to and builds upon the foundational offence under Section 312 IPC. Therefore, even though no specific charge for the offence under Section 312 IPC has been framed against the accused, a conviction under the said provision is permissible in law by virtue of Section 222 of the Code of Criminal Procedure, as it is a minor offence included within the graver charge under section 313 IPC.
68. Coming further this is not a case where the act was done to State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 50 of 61 prevent the child from being born alive or causing it to die after its birth as the victim was only approximately four months pregnant and therefore section 315 IPC is not attracted.
69. However, section 314 IPC penalizes an act whereby a person with the intent to cause miscarriage of a woman with child, causes the death of such woman and it is not essential for this offence that the offender should know that the act is likely to cause death. Thus, knowledge that the act is likely to cause death of the woman is not relevant for this offence under section 314 IPC and this factor distinguishes it from the offence under section 304 (II) IPC where proof of the fact that the offender knew that by such act, he is likely to cause death, is a sine qua non. On facts the accused acted with the intent to cause miscarriage of the victim and her act caused the death of the victim. It is not the requirement of section 314 IPC that the accused should have known that her act was likely to cause death of the victim. At the cost of repetition it may be noted that the accused is not entitled for the protection under section 3(1) of the Medical Termination of Pregnancy Act, 1971. Therefore, the ingredients of the offence under section 314 (Part I) IPC are made out and the accused is liable to be convicted for the same.
Findings qua offences under section 468/ 471 IPC
70. The record further reveals that during the course of investigation, the accused provided six documents regarding her State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 51 of 61 educational/ professional qualifications which are Ex. PW4/A1 to Ex. PW14/A6 and the same were seized vide memo Ex. PW23/A. The said documents are two BAMS certificates of surgeon and physician, two mark-sheets of Vaidya Visharad Course, marksheet of BAMS Pre Ayurvedic examination and degree of Vaidya Visharad.
71. PW14 HC Gajender went to Ayurvedic and Unani Chikitsa Parishad, Patna, Bihar for verification of the certificates Ex. PW14/A-1, Ex. PW14/A-2 and Ex. PW14/A-5 and the reports Ex. PW14/B and Ex.PW14/C were received. PW17 Vijender Kumar, Cashier, Bihar State Ayurvedic and Unani Chikitsa Parishad, Patna, Bihar has deposed that after checking their record regarding Ex. PW14/A-1, on 31.01.2011 Dr. Dhananjay Sharma, Registrar of the Institution had issued a certificate Ex. PW14/B that the Certificates having no. 45262 and Surgeon No. 2136 bearing the name of Kiran Shrivastava are fake and a similar certificate issued by the Registrar is Ex. PW17/A. PW17 further deposed that on checking the register they found that name of one Venkateshwar Prasad Singh s/o Ram Bilas Singh appears in their register of physicians at serial no. 2136 and the name of the surgeon at serial no. 45262 is Brij Bihari Lal s/o Bahadur Chand and the certified copies of both the registers are Ex. PW17/B and Ex. PW17/C. PW17 identified the signatures of Dr. Dhanajay Sharma, Registrar. There is nothing in his cross examination which discredits his testimony and I have no other reason to disbelieve his testimony.
State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 52 of 61
72. PW19 Shri Arun Kumar Singh Controller of Examination, B.R. Ambedkar, Bihar University, Muzaffarpur deposed that the certificate Ex. PW14 /A-5 allegedly signed by Shri H.S.P. Singh having registration no. 29341 of 1997 issued in May, 2002 is fake and as per record Shri H.S.P. Singh never worked in the said University in the year 2002; and that PW19 Shri Arun Kumar Singh had issued a letter Ex. PW14/C in this respect during investigation. There is nothing in his cross examination which discredits his testimony and I have no other reason to disbelieve his testimony.
73. The accused has given a bald explanation in this regard in her statement under section 313 Cr.P.C. that she had not given these documents to the IO. However, no such suggestion has been given to the IO PW 23 during his cross examination that the said documents were not recovered from/ provided by the accused, although this fact was categorically asserted by PW23 in his examination in chief. Moreover, it is seen that the documents bear the name and other details of the accused and two of the documents even bear her photographs (Ex. PW14/A1 and Ex. PW14/A2). Accordingly, there is no reason to believe that said documents were not handed over by the accused to the IO or were not seized by the IO from the accused. It is clear that on the basis of these documents only, the accused had been claiming that she was a qualified medical practitioner. There is absolutely no reason or occasion for anyone else to fabricate the said documents and plant them on the accused.
State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 53 of 61
74. Now the aforesaid said documents have been found to be forged. Section 463 IPC defines forgery and section 465 IPC provides for punishment of forgery. Forgery is nothing but the making of a false document with the intention specified in the provision. Further, section 468 IPC penalizes an aggravated form of forgery where forgery has been committed for the purpose of cheating a person. Section 471 IPC criminalizes the act of fraudulently or dishonestly using a forged document as if it were genuine. Once a document is found to be forged, a natural and inescapable inference follows, that someone must have fabricated or caused the fabrication of the such a document.
75. Now, under section 114 of the Indian Evidence Act the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of a particular case. One of the illustrations appended to section 114 of the Indian Evidence Act is that the Court may presume that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. Drawing an analogy from the aforesaid illustration, in a case where a forged document is recovered from the possession of the accused and where such document operates to the benefit of the accused, the Court may, by invoking the presumption under Section 114, infer that it was the accused who was responsible for the forgery of the same, unless she furnishes a cogent and satisfactory explanation as to how the forged document came into her possession, or State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 54 of 61 adduces evidence to establish that the forgery was committed by some other person and that she merely came into possession or made use of the document without knowledge of its forged nature. In this context, the provisions of Section 106 of the Indian Evidence Act are also attracted, which lay down that when any fact is especially within the knowledge of a person, the burden of proving such fact lies upon him. Therefore, it was incumbent upon the accused to specifically plead and prove as to how the forged documents came into her possession or to otherwise displace the presumption arising against him.
76. In this respect reference may be made to the judgment titled as State of West Bengal v. Mir Mohammad Omar reported as 2000 (8) SCC 382 wherein it has been observed by the Hon'ble Supreme Court:
"......The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage the offenders in serious offences would be the major beneficiaries, and the society would be the casualty.
In this case, when prosecution succeeded in establishing the afore narrated circumstances, the court has to presume the existence of certain facts.
State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 55 of 61 Presumption is a course recognised by the law for the court to rely on in conditions such as this. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case......."
77. Adverting to the facts of the present case the aforesaid documents Ex. PW4/A1 to Ex. PW14/A6 are the educational/ professional certificates, etc. in the name of the accused. It is clear that on the basis of these documents only, the accused had been claiming that she was a doctor qualified to practice medical profession. The documents have been recovered from the possession of the accused. No explanation has been offered by the accused as to how she came into possession of these documents, nor has she led any evidence to suggest that the documents were forged by some other person and subsequently handed over to her. The circumstances relating to the origin and acquisition of State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 56 of 61 these documents lie exclusively within the personal knowledge of the accused, and as such, the burden of proving these facts was upon her under Section 106 of the Indian Evidence Act. Accordingly, in the absence of any plausible or satisfactory explanation from the accused, the Court is justified in drawing a presumption under Section 114 of the Indian Evidence Act in conjunction with Section 106 of the Indian Evidence Act that it was the accused who had committed forgery of the said documents.
78. In this regard reference may be made to the following judgments:
(i) Bank of India vs. Yeturi Maredi Shanker Rao reported as 1987 (1) SCC 577 wherein it was observed:
"...As regards the offence under Section 467 read with Sec. 109, the learned High Court acquitted the respondent because it came to the conclusion that there is no evidence to establish as to who forged the signatures of P.W. 1 on the withdrawal form. It is no doubt true that so far as the evidence about the forgery of the signatures of P.W. 1 on the withdrawal form is concerned there is no evidence except the fact that the signatures are forged and the further fact that this withdrawal form was in the possession of respondent-accused who presented it in the Bank and obtained money therefrom and pocketed the same. From these facts an inference could safely be drawn that it was the respondent-accused who got State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 57 of 61 signatures of P.W. 1 forged on this document as it was he who used it to obtain money from the Bank from the account of P.W. 1 and pocketed the same It is no doubt true that there is no evidence as to who forged the signatures of the withdrawal form but the circumstances indicated above will lead to the only inference that it was the accused-respondent who got the signatures of P.W. 1 forged on the withdrawal form. In this view of the matter therefore the acquittal of the respondent for an offence under Section 467 read with Sec. 109 also could not be justified...."
(ii) Padum Kumar v. State Of Uttar Pradesh reported as AIR 2020 SC 447, wherein it was observed:
"........19. In the light of the evidence of PWs 1 to 3 and other evidence, the High Court rightly found that the appellant who delivered the registered envelope at the place of the complainant-PW-1 is bound to explain as to who made the alleged signature in Ex.-P4-delivery slip. In the absence of any explanation by the appellant-accused, as held by the High Court, a presumption is to be raised against the appellant who delivered the envelope as he is the only person having knowledge of the same. From the evidence of PW-3-Dr. M.L. Varshney, the prosecution has proved that the envelope contained valuable security-four Indira Vikas Patra of value of each Rs.5,000/- totalling Rs.20,000/-. Upon appreciation of evidence adduced by the prosecution, the courts below rightly recorded the concurrent findings that the appellant has forged the State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 58 of 61 signature of PW-2-Devesh Mohan and the conviction of the appellant under Sections 467 and 468 IPC is based upon the evidence and the conviction does not suffer from any infirmity warranting interference....."
79. It goes without saying that the accused used to charge fees from her patients after fraudulently claiming to be a qualified medical practitioner, relying upon the forged documents referred to herein-above. The primary intention behind the creation of these forged documents was clearly to cheat the patients and induce them to believe that the accused was a duly qualified doctor and part with their money. The ingredients of the offence under section 468 IPC are therefore established and consequently the accused is liable to be convicted for the offence under section 468 IPC. However, in so far as Section 471 IPC is concerned, there is no clear or conclusive evidence on record to demonstrate that the accused actually used or produced the forged documents before any competent authority or person as genuine, for the specific purpose of proving her alleged qualifications as a doctor. In the absence of such proof, the accused cannot be convicted for the offence under Section 471 IPC.
Findings qua the offence under section 27 of the Delhi Medical Council Act
80. It may be noted that Section 27 of the Delhi Medical Council Act provides as under:
State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 59 of 61 "27. False assumption of Medical Practitioner or Practitioner under this Act to be an offence. - Any person who falsely assumes that he is a medical practitioner or practitioner as defined in Clause (7) of Section 2 and practises the modern scientific system of medicine, shall be punishable with rigorous imprisonment which may extend up to three years or with fine which may extend up to Rs.
20,000 or with both.
Explanation. - Under this section, punishment can be awarded only to medical practitioners as defined in Section 2(7) of this Act and no punishment may be awarded to any one practising Veterinary medicine or Veterinary surgery or Homoeopathic or the Ayurvedic or the Siddha or the Unani System of Medicine or those holding BAMS or BIMS degree.
81. Further section 2(7) of the Delhi Medical Council Act defines "Medical practitioner" or "practitioner" as a person who is engaged in the practice of modern scientific system of medicine and all its branches and has qualifications as prescribed in the First, Second or Third Schedule to the Indian Medical Council Act, 1956 (102 of 1956).
82. Adverting to the facts of the present case, the material on record clearly establishes that the accused was engaged in the practice of modern scientific medicine without possessing the requisite qualifications as mandated under law. The evidence demonstrates that the accused not only administered allopathic treatment to the victim but also performed a surgical procedure upon her. Notably, even after the State v. Kiran Srivastav FIR No. 12/2011; P.S. Ranhola Page No. 60 of 61 tragic incident of the botched abortion--which resulted in the death of the victim on 07.10.2009--the accused did not cease her illegal medical practice. On the contrary, she continued to operate her clinic and, in fact, was found present at the said clinic at the time of her arrest on 25.01.2011, thereby indicating that she continued her unauthorized medical quackery with impunity. In view of the above, the accused is clearly liable to be convicted for the offence punishable under Section 27 of the Delhi Medical Council Act, which prohibits the practice of modern scientific medicine by unregistered and unqualified persons.
Conclusion
83. The net result is that the prosecution has been able to establish its case against accused Kiran Srivastav beyond reasonable doubt. Accordingly, the accused Kiran Srivastav is convicted for the offences punishable under sections 304 (Part II), 312 (Part I), 314 (Part I) and 468 of the Indian Penal Code and section 27 of the Delhi Medical Council Act, 1997. Accused Kiran Srivastav shall be heard on the point of sentence separately.
Digitally signed by SAURABH SAURABH KULSHRESHTHA
KULSHRESHTHA
Date: 2025.08.21
(Pronounced in the open court 16:00:04 +0530
on 21.08.2025)
(Dr. Saurabh Kulshreshtha)
Additional Sessions Judge-03 (West)
Tis Hazari Courts, Delhi
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 61 of 61