Delhi District Court
State vs Dr. Amrit Garg S/O Lt. Kishori Lal on 16 September, 2017
1
IN THE COURT OF DR. ARCHANA SINHA
ADDL. SESSIONS JUDGE02, NORTH
ROHINI COURTS, DELHI
Cr. Appeal No. 57392/16
State .....Appellant
V/s
1. Dr. Amrit Garg S/o Lt. Kishori Lal
R/o C41, Mahendru Enclave, Delhi.
2. Dr. Reshma Garg W/o Dr. Amrit Garg
R/o A19, Ground Floor, Kamla Nagar, Delhi.
3. Narender S/o Sh. Rang Bahadur
4. Leelawati W/o Sh. Narender
Both R/o H. No.J1322, Jahangir Puri, Delhi .......Respondents
Date of institution of the Appeal: 28.11.2015 Order/Judgment reserved on : 06.09.2017 Order/Judgment delivered on: 16.09.2017 ORDER/ JUDGMENT 16.09.2017
1. In this appeal, the State (Appellant) has questioned the legality of Judgment dated 29.09.2015, passed by Ld. MM03, North, Rohini Courts, Delhi, in criminal case vide FIR No. 675/07 under section 23 & 25 PNDT Act & 312/34 IPC, PS Model Town, vide which the respondents/accused persons were acquitted from the charges levied against them u/s 23 & 25 PNDT Act & 312/34 IPC.
CA No. 57392/16 State Vs. Dr. Amrit Garg etc., Page No. 1 22. As per the facts in brief, the prosecution alleged against the accused/respondents, that on 18.07.2005 at about 12:00 Noon at Amrit Clinic, Dilkhush Industrial Estate, G.T.K.Road, Delhi, within the jurisdiction of PS Model Town, accused Leelawati W/o accused Narender got conducted an ultrasound in the above mentioned clinic, through the coaccused Dr. Reshma Garg for the determination of the sex of her foetus in her womb, when she was having 3½ months' pregnancy, in contravention of Section 6 PNDT Act and thereafter on coming to know to have female foetus she voluntarily caused miscarriage of the said fetus after consuming some harmful substance. Also that Dr. Reshma Garg who conducted the ultrasound of the fetus of the coaccused Leelawati for determination of the sex for her fetus failed to properly maintain the register of ultrasound and has not submitted FormF of patient Leelawati as required under PNDT Rules and the same was never sent to the office of CDMO.
Vide order dated 25022016, Ld. Trial Court has framed the charges for the offence under section 25 PNDT Act against the accused/respondent No. 1 Dr. Amit Garg, for the offences under sections 23/25 PNDT Act against accused/respondent No. 2 Dr. Reshma Garg & for the offences under sections 23 PNDT Act & 312/34 IPC against the accused /respondent No. 3 & 4.
As the respondents had not pleaded guilty and claimed trial, the trial had commenced and on examination of 15 witnesses of prosecution, CA No. 57392/16 State Vs. Dr. Amrit Garg etc., Page No. 2 3 the accused persons were examined under section 281 Cr.PC and had refuted all the evidence against them.
On conclusion of trial, all the accused persons were acquitted from the charges levied against them, vide Judgment dated 29.09.2015, holding that the offences alleged against the accused persons were not proved beyond reasonable doubt.
Being aggrieved by the Judgment passed, the State preferred this appeal.
3. Ld. Addl. PP for the appellant/State has submitted that the Ld. Trial Court has not correctly appreciated the evidence on record particularly the admissions of the accused No. 3 & 4 in the form of letter Marked D1, on the basis of which the law set into motion and other two documents Ex. PW14/A & PW14/B, which were written on behalf of accused No. 3 & 4 in the presence of raiding party and that impugned order/judgment is unlawful, unreasonable based on incorrect view as the Ld. Trial Court has failed to consider these documents were extra judicial confessions of the accused No. 3 & 4 against them as well as against accused No. 1 & 2 in view of section 30 of the Indian Evidence Act.
Further, the Ld. Trial Court has wrongly relied upon the defence of the accused persons that the accused No. 3 & 4 had left the clinic of the accused No. 1 & 2 without getting her ultrasound because she was under severe pain and bleeding.
Also that the fact that the ultrasound was not done was the special CA No. 57392/16 State Vs. Dr. Amrit Garg etc., Page No. 3 4 fact within the knowledge of accused persons and the burden of proving such fact was on the accused persons u/s 106 Evidence Act, which they have failed as they have failed to produce any documents which could show that the ultrasound of accused No. 4 was not done. Further that merely the ultrasound machines were not sent to FSL, the prosecution case cannot be doubted because as otherwise the prosecution case is proved through the confessional statements of accused No. 3 & 4 through the documents Mark D1, Ex. PW14/A & PW14/B. Hence, on the basis of abovenoted contentions, the appellant has prayed for setting aside the impugned Judgment dated 29.09.2015 and requested for convicting the respondents/accused.
4. On the contrary, Ld. Counsels for the respondents/accused have supported the Judgment of acquittal dated 29.09.2015, with the submissions that the findings recorded by the Ld. Trial Court are based on a detailed and meticulous appreciation of evidence on record. It is submitted that the Judgment does not call for any interference as Ld. Trial Court has correctly appreciated the evidence on record in accordance with law considering all the contentions of the appellant, as has already been raised during trial and that the appeal is filed only to save the skin of the prosecution for not proving its case beyond reasonable doubt and the appeal warrants dismissal with heavy costs as it has caused further harassment to the respondents.
CA No. 57392/16 State Vs. Dr. Amrit Garg etc., Page No. 4 55. I have considered the rival submissions made by Ld. Addl. PP for the Appellant/State and Ld. Counsels for the respondents/accused and have perused the record meticulously in the light of such submissions.
6. At the outset it is required to be noted that denial to girl of her right to life is one of the heinous violation of the right committed by the society; Gender bias and deeprooted prejudice and discrimination against the girl child and preference of male child have led to large scale female foeticide in the last decade. Decline of sex ratio of girls and women in India is a major concern for all.
In order to check female foeticide, the PNDT Act has been enacted. The PNDT Act provides for
(i) prohibition of the misuse of prenatal diagnostic techniques for determination of sex of foetus, leading to female foeticide; (ii) prohibition of advertisement of prenatal diagnostic techniques for detection or determination of sex;
(iii) permission and regulation of the use of prenatal diagnostic techniques for the purpose of detection of specific genetic abnormalities or disorders;
(iv) permitting the use of such techniques only under certain conditions by the registered institutions; and
(v) Section 3 of the PNDT Act provides Regulation of Genetic Counselling Centres, Genetic Laboratories and Genetic Clinics.
Section 4 of the PNDT Act provides for Regulation of Prenatal Diagnostic Techniques. Under Section 4 of the PNDT Act certain conditions are cast upon the person conducting Ultrasonography on pregnant women.
Section 5 of the PNDT Act provides Written consent of pregnant women and prohibition of communicating the sex of foetus.
CA No. 57392/16 State Vs. Dr. Amrit Garg etc., Page No. 5 6As per Section 6 of the PNDT Act on commencement of the Act, 1994 there is total restriction and ban on determination of sex of foetus. As per Section 6 of the PNDT Act, no Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall conduct or cause to be conducted in its Centre, Laboratory or Clinic, prenatal diagnostic techniques including ultrasonography, for the purpose of determining the sex of foetus.
As per section 6 (b) of the Act, no person shall conduct or cause to be conducted any prenatal diagnostic techniques including ultrasonography for the purpose of determining the sex of foetus.
As per Section 6 (c), no person shall by whatever means, cause or allow to be caused selection of sex before or after completion. To see that object and purpose of the PNDT Act is achieved, Rules 1996 are framed.
Under Section 32 of the Act, Rule 3 provides for employees, the requirement of equipment etc., for a Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Centre.
Rule 3A provides for sale of ultrasound machines / imaging machines.
Rule 4 provides Registration of Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Centre.
Rule 9 cast duty on every Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Centre to maintain a register so as to achieve ultimate object of the Act.
Rule 10 provides for conditions for conducting prenatal diagnostic procedures.
Section 10 (1A) casts mandatory duty that any person conducting ultrasonography / image scanning on a pregnant women shall give a declaration on each report on ultrasonography / image scanning that he / she has neither detected nor disclosed the sex of foetus of the pregnant women to any body and even the pregnant women before undergoing ultrasonography / image scanning declare that she does not want to know the sec of her foetus.
Thus, maintenance and preservation of records and conditions for conducting prenatal diagnostic procedures are absolutely mandatory & punitive in nature but they are to achieve goal and object of PNDT Act and same is in larger public interest.
CA No. 57392/16 State Vs. Dr. Amrit Garg etc., Page No. 6 77. For proving the charges for the offences u/s 23/25 PNDT Act, it is pertinent to mention that Section 28 PNDT Act, 1994 prescribes the procedure of taking cognizance into the offences by the court of law and it is worth to note the following provisions, extracted below:
"28. Cognizance of offences -
(1) No court shall take cognizance of an offence under this Act except on a complaint made by
(a) the Appropriate Authority concerned, or any officer authorised in this behalf by the Central Government or State Government, as the case may be, or the Appropriate Authority; or
(b) a person who has given notice of not less than [fifteen days] in the manner prescribed, to the Appropriate Authority, of the alleged offence and of his intention to make a complaint to the court."
8. Further as per the rules framed under PNDT Act, filling of FormF was mandatory under PNDT Act in case of any ultrasound is to be conducted.
9. In view of the abovenoted settled proposition of law, for proving the offences alleged against any of the accused persons, the prosecution had to prove that 'an ultrasound was conducted' by the accused Dr. Rashma Garg at her clinic named as Amrit Clinic, Dilkhush Industrial Estate, G.T.K.Road, Delhi at the relevant date, time and place and only then the question of filling of the FormF or commission of the offences alleged arises.
CA No. 57392/16 State Vs. Dr. Amrit Garg etc., Page No. 7 810. It is observed that basically the appellant has impugned the Judgment on the ground that Ld. Trial court has failed to consider the letter Mark D1, which was allegedly sent by accused No. 3 to Hon'ble LG and other two documents Ex. PW14/A & PW14/B, which were allegedly written on behalf of accused No. 3 & 4 in the presence of raiding party, without any inducement or threat admitting their guilt and also of the guilt of accused No. 1 & 2, as extra judicial confessions of the accused No. 3 & 4 against them and that the court has failed to appreciate the law of evidence prescribed under section 30 of the Indian Evidence Act.
11. So far as the proposition of law of proving the charges in a criminal trial is concerned, it is a well settled proposition of law that the prosecution has to stand on its own leg for proving the guilt of the accused persons in preponderance of all the probabilities to the extent of moral certainty.
12. The letter Marked D1 of accused no. 3 & 4 and documents Ex.
PW14/A & PW14/B recorded by the raiding team cannot be covered within the ambit of admission of the guilt of any of the accused persons either for accused No. 3 & 4 or for accused No. 1 & 2 in the form of extra judicial confession of coaccused No. 3 & 4 for accused No. 1 & 2 and the burden is on the prosecution to prove that an ultrasound was conducted by the accused No. 2 at the relevant date, time and place, CA No. 57392/16 State Vs. Dr. Amrit Garg etc., Page No. 8 9 particularly on the face of evidence came on record.
13. In the given facts and circumstances and on appreciation of evidence on record, when the accused No. 4, out of desperation of loosing her male fetus during her termination of pregnancy, may move a complaint to the higher authority roping the other accused persons making them responsible for such loss and such complaint cannot be treated as 'admissions' or 'extra judicial confession' to prove the guilt of the accused persons unless and until, the charges of conducting an ultra sound for prenatal diagnosis test are proved by the prosecution through corroborative and independent evidence.
14. The prosecution cannot be discharged of its burden of proving the offence alleged against the accused persons beyond reasonable doubt particularly when there existed contrary medical records to show the termination of pregnancy for other reasons as per documents proved on record.
15. Neither the provisions of section 30 of Evidence Act nor the provisions of section 106 of Evidence Act gives liberty to the prosecution for not proving the guilt of the accused persons for the charges levied against the accused persons facing trial. If the complaint itself was taken as 'admissions' of the guilt for all 4 accused persons, then there appears no need of trial.
CA No. 57392/16 State Vs. Dr. Amrit Garg etc., Page No. 9 1016. In this case Ld. Trial Court has discussed the evidence led by the prosecution on record and has discussed all the contentions relating to the alleged 'admissions' of accused No. 3 & 4, in details in the body of judgment in paras 11 to 17 & these aspects have been discussed in the light of evidence of Dr. Usha Wadhwa, PW5 who found that the abortion was inevitable and such abortion took place without any medication.
17. On appreciation of the evidence of PW5, it is observed that there was nothing suggestive to support the prosecution story that Smt. Leelawati, accused No. 4 had voluntarily gone to terminate her pregnancy for aborting the unwanted child. Rather the evidence has come on record that the pregnancy was terminated for the inevitable reasons. Nothing had come on record, in the prosecution evidence that Smt. Leelawati, on obtaining an information regarding female foetus, had consumed something voluntarily to terminate her pregnancy to get rid of her unwanted foetus. The letter Mark A was not proved on record, however the law came into motion on such letter but the prosecution had not taken pain to prove such material document on record, in accordance with law of evidence for proving a document to make it an admissible documentary evidence to be read in evidence. Taking the plea that such letter itself was an admission to prove the guilt of accused No. 3 & 4 or to say the guilt of accused No. 1 & 2 as their extra confessional statement, has no force particularly when prosecution itself could not prove this material piece of document on record in accordance CA No. 57392/16 State Vs. Dr. Amrit Garg etc., Page No. 10 11 with the prescribed provisions of Indian Evidence Act.
18. Ld. Trial Court has rightly observed that another evidence that was scientific in nature could have been produced by producing the data of the ultrasound machine with which such ultrasound was allegedly conducted but such best evidence was also not procured or produced during trial to prove the basic facts that an ultrasound for prenatal diagnosis of the foetus was conducted on accused Leelawati who moved the complaint to Hon'ble LG to initiate the horn of law into motion. As per presumption under section 114 of Evidence Act, it leads to an adverse inference that in case of production of such best evidence, it may not support the prosecution case.
19. The basis/material piece of evidence that is the complaint and the scientific data of alleged ultrasound were missing in the bucket of evidence of the prosecution and the state wanted to rely and prove the guilt of the accused persons on the basis of a secondary evidence i.e. Marked A and document Ex. PW14/A & PW14/B which were the statements made before a raiding team who was basically in the form of investigating agency in the form of police agency for the purpose of the investigation of the matter and such statements had to meet the criteria of evidenciary value of such documents during trial.
20. It is observed that as per the evidence on record, the prosecution CA No. 57392/16 State Vs. Dr. Amrit Garg etc., Page No. 11 12 when failed to prove its case that any such ultrasound was ever conducted by accused No. 2 as alleged, the rule vide which form F was to be furnished on conducting ultrasound, does not come into play to prove the charges, if as per the defence no such ultrasound was ever conducted as the patient Smt. Leelawati due to sudden pain had to leave for termination of pregnancy on the same very day as proved through the testimony of PW5 that the termination was inevitable as the patient was suffering pain, leaking and bleeding at the time of admission in Delhi Hospital.
The contention regarding application of section 106 Evidence Act has no force on the face of the testimonies of PWs that proves that the unborn baby was a male & if the ultrasound could have been conducted the facts of male child could have been revealed to accused No. 4. Thus, it cannot be said that the Ld. Trial Court has wrongly relied on the defence taken by the accused No. 1 & 2 as the prosecution has failed to prove that any such ultrasound was conducted and also that prosecution ocular evidence of PW5 has belied the story of the prosecution that Smt. Leelawati had gone for voluntarily termination of pregnancy on coming to know that she had female foetus. In such scenario the documents Marked A and Ex. PW14/A & PW14/B were weak evidence on the face of the evidence of PW5, if weighed in the given facts and circumstances and conclusion that the prosecution has miserably failed to prove its case, was not wrong or improper.
CA No. 57392/16 State Vs. Dr. Amrit Garg etc., Page No. 12 1321. For the conclusions drawn by trial court regarding not proving the guilt of the accused for the offences alleged by the prosecution, the Hon'ble Supreme Court in case titled as Sunil Kumar Sambhudayal Vs. State of Maharashtra decided on 11112010 in Criminal Appeal No. 891/2004, observing certain principles that were consistently reiterated and followed by Hon'ble Apex Court, guiding that the same should be followed by all appellant courts of law while dealing with a judgment of trial court that, 'An appellate court must consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable.
Even though the appellate court is entitled to consider, whether in arriving at a finding of fact, the trial Court had placed the burden of proof incorrectly or failed to take into consideration any admissible evidence and/or had taken into consideration evidence brought on record contrary to law.
The appellate court should not ordinarily set aside a judgment in a case where two views are possible, though the view of the appellate court may be the more probable one.
The trial court which has the benefit of watching the demeanor of the witnesses is the best judge of the credibility of the witnesses'
22. Also in such case on considering the catena of judgments such as Balak Ram & Anr. vs. State of U.P., AIR 1974 SC 2165; Shailendra Pratap & Anr. vs. State of U.P., AIR 2003 SC 1104; Budh Singh & Ors. vs. State of U.P., AIR 2006 SC 2500; S. Rama Krishna vs. S. Rami Reddy (D) by his LRs. & Ors., AIR 2008 SC 2066; Arulvelu & Anr. vs. State, (2009) 10 SCC 206; Ram Singh alias Chhaju vs. State of Himachal Pradesh, (2010) 2 SCC 445; and Babu v. State of Kerala, (2010) 9 SCC 189, it was settled as a principle for all appellate CA No. 57392/16 State Vs. Dr. Amrit Garg etc., Page No. 13 14 courts that, In exceptional cases where there are compelling circumstances, and the judgment of acquittal is found to be perverse, the appellate court can interfere with the judgment of acquittal.
The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. A finding may also be said to be perverse if it is `against the weight of evidence', or if the finding so outrageously defies logic as to suffer from the vice of irrationality.
23. Thus, on appreciation of evidence on record, there appears no perversity or infirmity in the observations/conclusions made by Ld. Trial Judge in the impugned judgment/orders, to call for any interference by this court. Thus, the appeal, being devoid of any merits, stands dismissed.
The Ld. Trial Court Record alongwith a copy of this order be sent to the Ld. Trial Court for necessary information and record. The Appeal file be consigned to Record Room.
Announced In the open Court (Dr. Archana Sinha)
on 16.09.2017 Addl. Session Judge02,North
Rohini Courts, Delhi
16.09.2017
CA No. 57392/16 State Vs. Dr. Amrit Garg etc., Page No. 14