Delhi District Court
State vs . Dr. Amrit Garg Etc. on 29 September, 2015
IN THE COURT OF SH. RAJINDER KUMAR, MM03,
NORTH DISTRICT, ROHINI COURT, DELHI
STATE Vs. DR. AMRIT GARG ETC.
FIR No. 675/2007
PS: MODEL TOWN
U/S: 23 & 25 PNDT ACT & 312/34 IPC
Sr. no. of the case : 148/10
Date of commission of offence : 18.07.2005
Date of institution of the case : 14.09.2010
Name of the complainant : Dr. M. D. Thapa
Name of accused and address : 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
Offence complained of or proved : U/s 23 & 25 PNDT ACT
r/w Sec. 312/34 IPC
Plea of the accused : Pleaded not guilty
Final Order : Acquitted
Date of judgment : 29.09.2015
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FIR No.675/07, PS Model Town Page 1 of 14
J U D G M E N T
1. The story of the prosecution in brief is 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 and Narender in furtherance of their common intention caused the determination of the sex of the fetus in the womb of accused Leelawati (who was 3½ months pregnant) through the co accused Reshma Garg in contravention of Section 6 PNDT Act and thereafter voluntarily caused miscarriage of the said fetus after consuming some harmful substance.
Further, Dr. Reshma Garg conducted the ultrasound of the fetus of the coaccused Leelawati, who was 3½ months pregnant, for determination of the sex for her fetus in contravention of Section 6 of PNDT Act and also failed to properly maintain the register of ultrasound.
Further, accused Amrit Garg, being the Director of Amrit Clinic failed to submit FormF of patient Leelawati as required under PNDT Rules and the same was never sent to the office of CDMO.
2. The prima facie case was found to be made out against the accused persons. Accordingly, accused Leelawati and Narender were charged for the offences punishable U/s 23 PNDT Act r/w Sec. FIR No.675/07, PS Model Town Page 2 of 14 312/34 IPC, accused Dr. Reshma Garg was charged for the offences u/s 23/25 PNDT Act and accused Dr. Amrit Garg was charged for the offence u/s 25 PNDT Act. The accusation was read over and explained to the accused persons to which they pleaded not guilty and claimed trial.
3. The prosecution got examined fifteen witnesses in support of its case, which are as follows:
(1) PW1 Dr.Purnima Wagchu, the member of the Inspection Team. (2) PW2 Dr. Sangeeta, the member of the Raiding Party. (3) PW3 Dr. Nutan Mundeja, the member of the Raiding Party. (4) PW4 Dr. M. D. Thapa, the complainant and the member of the Raiding Party.
(5) PW5 Dr. Usha Wadhawa, who conducted the abortion. (6) PW6 Dr. H. L. Kamboj, who attested the seized documents. (7) PW7 Smt. Shobha Vijender, the member of the Raiding Party. (8) PW8 Dr. Vasudha Bhakta, who had examined Smt. Leelawati at her clinic.
(9) PW9 SI Rakesh Rana, one of the IOs of the case. (10) PW10 ASI Nanhe Ram, the Duty Officer. (11) PW11 Smt. Sarita Garg, the member of the Raiding Team. (12) PW12 Insp. Dharam Pal, one of the IOs of the case. FIR No.675/07, PS Model Town Page 3 of 14 (13) PW13 Insp. Rajesh Vijay, the IO of the case. (14) PW14 Dr. S. K. Khurana, the member of the Raiding Team. (15) PW15 SI Rakesh Sehrawat, one of the IOs of the case It is pertinent to mention here that out of 15 prosecution witnesses, SI Rakesh Rana (PW9), Insp. Dharam Pal (PW12) and SI Rakesh Sehrawat (PW15) are the formal one.
It is further pertinent to mention here that the complaint case was filed on 18.11.2005 and vide order dated 09.11.2011 the same was disposed off and attached with the case FIR no.675/07.
It is further pertinent to mention here that the case FIR no.675/07 was registered on 23.10.07 for the very same cause, whereupon the cognizance was taken on 14.09.2010.
4. Statements of the accused persons U/s 281 Cr.P.C. were recorded, in which all the incriminating evidence was put to them. The accused persons have controverted and denied the allegations leveled against them stating that they are innocent and falsely implicated in the present case. The accused opted not to lead DE.
5. It was deposed similarly by the members of the Raiding Team/Party i.e. Dr. Purnima Wagchu (PW1) Dr. Sangeeta (PW2) Dr. Nutan Mundeja (PW3) Dr. M. D. Thapa (PW4), Smt. Shobha Vijender (PW7) Smt. Sarita Garg (PW11) and Dr. S. K. Khurana FIR No.675/07, PS Model Town Page 4 of 14 (PW14) that on 17.11.2005 they alongwith the other members reached at Amrit Clinic, GTK Road, Delhi. That they inspected the clinic and found one receipt in the name of Leelawati. That they checked FormF but could not found the same. That they made a complaint to the police. They they seized the records of the clinic. That the machines were also seized, which were released on supardari later on. That the complaint was filed because the accused had not filled up FormF which was mandatory under PNDT Act. That some of the officials of Delhi Police also joined the raid. That accused Narender and Leelawati were also present in the clinic at that time besides Dr. Amrit Garg and Dr. Reshma Garg. That the ultrasound machines were kept in one room and the same was sealed by the CDMO and the related documents, files and receipt books were also seized. That thereafter they went to Sanjay Hospital, Azadpur, where treatment of Leelawati was done. That they had seized the documents with respect to the treatment of Leelawati at that hospital and thereafter returned to their office.
6. It is contended by the accused persons that the cognizance was bad and that for the sake of arguments, if it is presumed that the cognizance was taken on the complaint, even then, it cannot be treated the cognizance as required u/s 28 PNDT Act as there was no FIR No.675/07, PS Model Town Page 5 of 14 presummoning evidence led by the complainant in this case, nor was any notice given to the Authority concerned.
7. So far as the charges for the offences u/s 23/25 PNDT Act are concerned, it is pertinent to mention here that Section 28 PNDT Act, 1994 reads as follows :
"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. The word complaint is defined u/s 2(d) Cr.P.C. which reads as under :
"A complaint means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report."
9. As per story of the prosecution, the accused Leelawati alongwith her husband i.e. coaccused Narender in furtherance of their common intention went to the Amrit Clinic and got the determination of the sex of the fetus in contravention of Sec. 6 of the FIR No.675/07, PS Model Town Page 6 of 14 PNDT Act.
10. Now, the first question arises as to whether the accused Leelawati alongwith her husband has gone to the Amrit Clinic at the relevant date and time.
It is pertinent to mention here that either the patient Leelawati or the persons i.e. the doctors and the staff posted at the hospital concerned only can depose in this regard as to whether the said patient had visited the hospital.
Out of 15 witnesses got examined by the prosecution in this case, Dr. Usha Wadhawa (PW5) and Dr. Vasudha Bhakta (PW8) are the material witnesses in this regard. Both of them have stated regarding the presence of accused Leelawati at the Amrit Clinic.
It was admitted to be correct by Dr. Nutan Mundeja (PW3) during her crossexamination that on inquiry Dr. Reshma Garg denied having done ultrasound on Leelawati and the said fact was mentioned in para8 of the complaint.
11. Now, the second question arises as to whether the Ultrasound Test of accused Leelawati was got conducted at Amrit Clinic for the determination of the sex for her fetus on the relevant date and time and lastly, whether accused Leelawati got the sex determination of FIR No.675/07, PS Model Town Page 7 of 14 the fetus at Amrit Clinic through Dr. Amrit Garg and Dr. Reshma Garg.
It is pertinent to mention here that there can be three ways to prove the same i.e.
(i) By the admission of the doctor concerned or ;
(ii) By the admission of the patient concerned or ;
(iii) By the Forensic Ex. of the ultrasound machine, being used for the test.
12. So far as the first two ways are concerned, none of the accused admitted the Ultrasound Test of accused Leelawati and even the patient herself i.e. Leelawati did not admit the same. Nothing was stated by the accused persons while being examined u/s 281 Cr.P.C. in this regard. Now, only the third way is left. Meaning thereby, only through the FSL Examination of the Ultrasound Machine was left the only mean to decide the question.
But in the case in hand, no Ultrasound Machine was sent to the FSL for the purpose of expert opinion to ascertain as to whether the Ultrasound Test of the patient i.e. accused Leelawati was conducted through the said machine at Amrit Clinic on the relevant date and time for the reasons best known to the officials of the raiding team and the IO of the case.
FIR No.675/07, PS Model Town Page 8 of 14
13. As per story of the prosecution, the incident took place on 18.07.2005 but the raid at Amrit Clinic was conducted only on 17.11.2005 i.e. after the expiry of four months.
Further more, as per the deposition of the prosecution witness i.e. Dr. Usha Wadhawa (PW5), the patient namely, Leelawati visited Delhi Hospital alongwith her husband on 18.07.2005, having pregnancy of 3½ months and was having pain, leaking and bleeding at the time of admission. That she examined her and found that the abortion was inevitable. That the abortion took place without any medication.
The witness did not support the story of the prosecution. Hence, was crossexamined at length by the Ld. APP for the State on the ground that she was resiling from her earlier statement.
But while under crossexamination, the witness remained on the same stand and incorrected to all the suggestions put by the Ld. APP for the State. It was also deposed by the witness that she conducted the abortion just to save the life of the patient.
14. Dr. Vasudha Bhakta (PW8) deposed that she had examined one patient namely, Leelawati at her clinic in the year 2005 or 2006. That she came to her clinic with three months pregnancy having bleeding. That she was advised an Ultrasound and she never come thereafter to FIR No.675/07, PS Model Town Page 9 of 14 her clinic.
15. It is contended by the Ld. APP for the State that the case FIR no.675/07 was registered on the complainant made by accused Leelawati and Narender and that the same may be treated as confessional statement u/s 164 Cr.P.C.
It is contended by the accused persons that the prosecution did not took any interest in getting the statement of the accused recorded u/s 164 Cr.P.C. to this effect. That it was for the prosecution to prove its case beyond all reasonable doubts.
16. The copy of the complaint MarkD1 alleged to have been signed by accused Leelawati and coaccused Narender. The perusal of the same reveals out that it was the second one and it is merely a copy which is not admitted by the accused concerned.
It is well established law that the confessional statement is substantive piece of evidence against its maker, so that it has been duly recorded and suffers from no legal infirmity. The Confessional Statement ordinarily cannot be the sole basis of the conviction. However, it is admissible and conviction may be based upon it if it is found truthful and voluntary the confessional which is not retracted even at the later stage of the trial and even accepted by the accused in FIR No.675/07, PS Model Town Page 10 of 14 the statement u/s 313 Cr.P.C., can be fully relied upon.
The copy of the complaint MarkA is not proved as per the Indian Evidence Act and in the absence of the same, it cannot be treated as Confession Statement qua the accused persons in this case as it does not fulfills the requirement of Sec. 164 Cr.P.C.
In the case in hand, the prosecution has failed to place on record the complaint (copy of which is MarkA) and even did not proved the same during the course of trial. In the absence of the said statement, no issue regarding the nature of the same arises. For the sake of arguments, if the said complaint is treated to be correct and termed as confessional statement, even then it is not established that the same was truthful and voluntary. Further more, the accused concerned did not accept the same in their statements u/s 281 Cr.P.C.
17. Moreover, during crossexamination, it was admitted by Dr. Nutan Mundeja (PW3) that she did not make efforts to get the data recovered from Ultrasound Machine by scientific methods.
In view of the above, the prosecution has failed to prove the charges for the offences u/s 23 PNDT Act r/w Sec. 312/34 IPC qua accused Narender and Leelawati.
18. So far as the charges for the offence u/s 25 PNDT Act qua FIR No.675/07, PS Model Town Page 11 of 14 accused Dr Amrit Gag and Sec. 23/25 PNDT Act qua accused Dr. Reshma Garg respectively are concerned, Dr. Purnima Wagchu (PW1) and Dr. Nutan Mundeja (PW3) are the material witnesses in this regard.
It was deposed by Dr. Purnima Wagchu (PW1) that the present complaint was filed because the accused had not filled FormF, which was mandatory under PNDT Act.
While under crossexamination, it was deposed by Dr. Sangeeta (PW2) that she had checked the records of Amrit Clinic in their office regarding the submission of FormF before the raid.
It was admitted by the witness to be correct that FormF were being regularly submitted by Amrit Clinic and that the procedure was that FormF was filled up prior to the Ultrasound of the patient.
It was deposed inter alia by Dr. Nutan Mundeja (PW3) that they could not found FormF with the centre, which was mandatory to be filled up before conducting prenatal test.
19. As per the story of the prosecution, the accused Amrit Garg has failed to submit FormF of patient Leelawati as required under PNDT Rules nor it was sent to the office of CDMO but, the statement of Dr. Usha Wadhawa (PW5) is considerable.
It was deposed by Dr. Usha Wadhawa (PW5) that the patient FIR No.675/07, PS Model Town Page 12 of 14 namely, Leelawati visited Delhi Hospital alongwith her husband on 18.07.2005, having pregnancy of 3½ months and was having pain, leaking and bleeding at the time of admission. That she examined her and found that the abortion was inevitable. That the abortion took place without any medication.
Dr. Vasudha Bhakta (PW8) deposed that she had examined one patient namely, Leelawati at her clinic in the year 2005 or 2006. That she came to her clinic with three months pregnancy having bleeding. That she was advised an Ultrasound and she never come thereafter to her clinic.
20. To prove the charges for the offences u/s 25 PNDT Act qua accused Amrit Garg, firstly, it is to be proved whether the Ultrasound Test of accused Leelawati was conducted at Amrit Clinic and in the absence of the same, the question of submission of FormF does not arises. The prosecution has failed to prove that the Ultrasound of patient Leelawati was conducted at the said Hospital.
In view of the above, it is clear that the prosecution has failed to prove its case against any of the accused persons beyond all reasonable doubts. Accordingly, taking into consideration the facts and circumstances of the case, all the accused persons are acquitted of the charges leveled against them.
FIR No.675/07, PS Model Town Page 13 of 14
At this stage, fresh bail/surety bond furnished and accepted in compliance of Section 437 A Cr.P.C. alongwith latest passport size photographs and residential proofs.
ANNOUNCED IN THE OPEN (RAJINDER KUMAR)
COURT ON 29.09.2015 MM03(NORTH)/ROHINI
DELHI
FIR No.675/07, PS Model Town Page 14 of 14