Delhi District Court
Dr. Mitu Khurana vs State Of Nct Of Delhi & Ors. on 27 January, 2018
IN THE COURT OF SH. ASHUTOSH KUMAR, SPECIAL
JUDGE02 (P.C.ACT), CBI, NORTHWEST DISTRICT,
ROHINI COURT, DELHI
CR No: 49729/2016
Dr. Mitu Khurana Vs State of NCT of Delhi & Ors.
Dr. Mitu Khurana
D/o Dr. A.C. Khosla
W/o Dr. Kamal Khurana
R/o A1/39, Janakpuri,
New Delhi.
..........Revisionist
Vs
1 State of NCT of Delhi
2 Jaipur Golden Hospital,
2, Institutional Area,
Rohini, Delhi.
3 Dr. Kamal Khurana
S/o Sh. B.D. Khurana,
R/o C4/6, Sector15,
Rohini, Delhi.
4 Mrs Indira Khurana
W/o Sh. B.D. Khurana
R/o C4/6, Sector15,
Rohini, Delhi.
5 Dipesh Madan
R/o PD23C,
Viashakha Enclave,
Pitampura, Delhi.
............Respondents
CR No: 49729/2016 Mitu Khurana Vs State & Ors. 1 of 16
Date of Institution : 26/10/2015
Date of reserving the order : 06/01/2018
Date of order : 27/01/2018
Present. Revisionist in person.
Ms. Neeta Gupta, ld. Addl. PP for respondent
no.1/State.
Sh. Manmohan Sharma, AR for respondent
no.2 along with ld. Counsel Sh. Tarun Walia.
None for respondents no. 3 to 5.
ORDER
1. The challenge in the present revision petition filed by the original complainant (revisionist herein) u/s 397 Cr.P.C. is to the impugned order dated 29/09/2015 passed by learned Trial Court of Sh. Dharmender Singh, ld. MM03, NorthWest District, Rohini Courts, Delhi in complaint case titled as "Dr. Mitu Khurana Vs Jaipur Golden Hospital & Others", CC no. 337/01/08, whereby learned Trial Court discharged the original accused No.1 (respondent no.2 herein) and accused no. 4 to 6 (respondents no. 3 to 5 respectively herein) after completion of precharge evidence and hearing arguments on the point of charge.
2. It is pertinent to mention that summoning order qua original accused no.2 Harsh Mahajan and accused no.3 Dr. Nitin Seth was quashed by Hon'ble High Court vide common order dated 25/04/2016 in Crl. M.C. 3128/2011 & Crl. M.C. 731/2012 respectively and SLPs against the said orders filed by original CR No: 49729/2016 Mitu Khurana Vs State & Ors. 2 of 16 complainant were also dismissed by Hon'ble Supreme Court.
3. The brief facts of the case are that the marriage between complainant Dr. Mitu Khurana (revisionist herein) and Dr. Kamal Khurana (respondent no.3 herein) was solemnized on 28/11/2004. She came to know about her pregnancy on 05/02/2005.
4. It is not in dispute that the revisionist had filed various complaints against her husband and inlaws regarding her harassment prior to filing the complaint case in question and many litigations of her matrimonial disputes are pending.
5. It is also not in dispute that the revisionist, her husband, her parents and her sister are qualified doctors, her sister being a radiologist.
6. The revisionist was admitted in Jaipur Golden Hospital Casualty ward on 28/04/2005 with the history of allegedly consuming eggs on 27/04/2015, with which she was allergic, with a complaint of vomiting. After examining her, the gynaecologist Dr. S.N. Basu advised to get an ultrasound of KUB (Kidney Ureter and Bladder) done upon her.
7. As per testimony of original complainant (revisionist herein) before learned Trial Court, on 26/03/2008 while she was shifting in rented accommodation, documents relating to her aforesaid treatment at Jaipur Golden Hospital came in her hand CR No: 49729/2016 Mitu Khurana Vs State & Ors. 3 of 16 and only then she came to know that sex determination was conducted at Jaipur Golden Hospital.
8. As per the case of the revisionist, in the year 2006, in drunken state, her husband Dr. Kamal Khurana (respondent no.3 herein) had admitted before her that they had got conducted the sex determination during her pregnancy but she did not believe the same as she was not aware where the sex determination was done and so did not file any case.
9. On 06/07/2005, she had made a police complaint in which she had alleged that her inlaws were demanding a sex determination test. It is not in dispute that another ultrasound of the abdomen of the complainant (revisionist herein) was done on 12/07/2005 at the insistence of the complainant herself at Sir Ganga Ram Hospital while she was there in AntiNatal care.
10. It is admitted fact that the revisionist delivered twin baby girls on 11/08/2005.
11. In another complaint filed on 12/03/2006 by her to SHO, PS Janak Puri, there were allegations of her torture by her husband and inlaws. The entire complaint was with respect to the allegations that her husband and inlaws were not happy that she had delivered daughters in the family and she had mentioned about the illtreatment she got from the family after the delivery of daughters.
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12. Furthermore, in her third complaint made on 09/06/2006 to Deputy Commissioner of Police, Crime Against Women Cell, New Delhi, she had complained about being tortured by her inlaws as well as by her husband. She had alleged in the complaint that her husband wanted the DNA testing of the babies as according to him it was written in his horoscope that he would only have one son. It was further alleged in the said complaint that there was threat to her life and the lives of her daughters and that she had already made a complaint to PS Janak Puri.
13. After lapse of few days less than three years to her alleged sex determination test on 28/04/2005, she filed another complaint on 10/04/2008 to National Commission for Women, New Delhi, making allegations of torture against her husband and inlaws. In the said complaint, she had also mentioned that a sex determination test was conducted upon her by deception but she did not refer the name of any doctor or hospital where the said alleged test was conducted. She also did not name the gynaecologist, who had referred her for the said ultrasound test. No ultrasound test could have been conducted upon her without the said reference of the gynaecologist.
14. On the complaint made by the complainant (revisionist herein) to the CDMO, a three members committee was constituted comprising of Dr. V.K. Aggarwal (Additional CDMO), Dr. Sangeeta (District PD Officer) and Dr. Ritu Mathur who went into great detail of the complaint made by the CR No: 49729/2016 Mitu Khurana Vs State & Ors. 5 of 16 revisionist. The said committee examined the revisionist and the various doctors and also sent a decoy customer (a pregnant lady), to Jaipur Golden Hospital to try to get her sex determination done at the said hospital. The committee after a detailed enqiry came to the finding on 09/05/2008 that there was no direct or any circumstantial evidence of sex determination. The committee also opined that the FormF in question from Jaipur Golden Hospital was not traceable (qua the said ultrasound test conducted upon the revisionist) although clearly under Section 29 of the PCPNDT Act and Rule 9 (6) of PCPNDT Act it was not obligatory for the said hospital to maintain the said FormF after the expiry of two years from the date of the test. The committee also gave finding that there was no female foeticide and that the revisionist had given birth to live twin girls.
15. On 09/05/2008, the revisionist disclosed for the first time in her complaint to District Appropriate Authority that her brotherinlaw namely Dipesh Madan (respondent no. 5 herein) came to her inlaws house on 27/04/2005 with a cake saying that it was eggless and upon eating the same, the revisionist started having pain in abdomen with nausea, vomiting and loose motion as she was allergic to eggs. She was forcefully taken to Jaipur Golden Hospital where the alleged sex determination test was conducted upon her.
16. The learned MM while discharging the respondents No. 2 to 5 gave interalia following reasons: "This court is of the considered view that in the present CR No: 49729/2016 Mitu Khurana Vs State & Ors. 6 of 16 case there are certain lacunaes in circumstantial evidence on which complainant is relying.
(a) As per the case of complainant in Jaipur Golden Hospital, her case for admission was recommended by Casualty Doctor and ultrasound was recommended by another doctor who was a Gynaecologist. Both these doctors have not been arrayed as accused and there is no allegation against them. This court is of the considered view that no occasion for ultrasound test would have arisen unless complainant had not been admitted on the recommendation of Casualty Doctor and her ultrasound had not been recommended by Gynaecologist.
(b) As per the case of complainant, she was taken to Jaipur Golden Hospital although she wanted to get treatment at Ganga Ram Hospital. This court is of the considered view that as per the testimony of complainant she was in severe pain and it is very natural on the part of any reasonable man to take the patient in nearer Hospital in such case instead of taking the patient to distant hospital.
(c) As per testimony of complainant on 26/03/2008 while she was shifting in rented accommodation documents relating to Jaipur Golden Hospital came in her hand and only then she came to know that sex determination was conducted at Jaipur Golden Hospital. As per complainant, said document is incriminating against accused. This court is of the considered view that there was no use of such document for accused no.4 and it is highly improbable that a CR No: 49729/2016 Mitu Khurana Vs State & Ors. 7 of 16 reasonable man will keep safely any document which is of incriminating nature against him instead of destroying the same.
(d) Complainant of this case is a Doctor. Even her parents are doctors and her sister is a Radiologist. This court is of the considered view that it is highly improbable that a person who is from Doctor Profession will not see his discharge summary after discharge from treatment.
(e) As per the case of complainant, in the year 2006 in drunken state, accused no.4 admitted before her that they got conducted the sex determination during her pregnancy, however, as per complainant she did not believe the same as she was not aware that where said sex determination was done and so she did not file any case. As per testimony of complainant, she was admitted in Jaipur Golden Hospital against her wish and Form F was also not filled up and in all other hospitals said form was filled up whenever ultrasound was conducted during pregnancy. This court is of the considered view that in view of the above facts, complainant could easily find out the hospital where sex determination was conducted.
(f) It is also relevant to mention here that present complaint has been filed after institution of matrimonial proceeding between the parties and filing of number of complaints against accused persons by complainant."
17. I have already heard learned counsels for parties at CR No: 49729/2016 Mitu Khurana Vs State & Ors. 8 of 16 length on various dates and have perused the record including the TCR and written submissions filed.
18. It is admitted case of the revisionist that after her aforesaid ultrasound test was conducted on 28/04/2005, she made allegation for the first time in her 4 th complaint dated 09/05/2008 about her being taken to Jaipur Golden Hospital by her husband on 28/04/2005 and foetal ultrasound being done upon her. The said complaint dated 09/05/2008 was made after a gap of more than three years before the District Medical Officer, who under the statute, constituted a committee to conduct an enquiry under the Act. The committee gave a report on 26/09/2008 exonerating Jaipur Golden Hospital, Dr. Harsh Mahajan (erstwhile accused no.2) and Dr. Nitin Seth (erstwhile accused no.3). On getting no relief from District Medical Officer, the revisionist filed a complaint against the aforesaid Dr. Harsh Mahajan, Dr. Nitin Seth and respondents no. 2 to 5 herein.
19. Admittedly the revisionist, her parents and her sister are qualified doctors, her sister being a radiologist. This Court is in agreement with the prima facie view taken by learned Trial Court that it is highly improbable that a person who is from doctor profession will not see discharge summary after discharge from treatment. It is not the case of the revisionist that she was unconscious or that she was in such a medical condition that she could not know where the ultrasound device was being moved/ used upon which part of her body at the time of said test. Admittedly the revisionist did not raise any objection regarding CR No: 49729/2016 Mitu Khurana Vs State & Ors. 9 of 16 conducting of said ultrasound test upon her, when the same was being done.
20. Furthermore the allegation of the revisionist that in the year 2006, her husband in drunken state had admitted before her that they had got the sex determination test conducted, prima facie appears to be an afterthought in view of the fact that no date or month or place where the said extrajudicialconfession was made and even details where the alleged sex determination test was done, were admittedly not disclosed in the said extra judicialconfession. Also in view of the acrimonious relationship between the parties, the false allegation of extrajudicial confession cannot be ruled out. Even otherwise, learned Trial Court has rightly relied upon the case laws on extrajudicial confession to prima facie observe that no clear or unequivocal confession is there on the part of the husband regarding conducting of sex determination test. The learned Trial Court has also rightly rejected the extrajudicialconfession made before CW11 Bijay Laxmi Nanda because in her crossexamination she stated that she had 23 meetings with the revisionist and her husband but she does not remember in which of the meetings he (husband) made confession/admission regarding conducting of sex determination.
21. As regards nonmaintaining of FormF pertaining to ultrasound test of the revisionist by Jaipur Golden Hospital, this Court totally agrees with the reasoning given by learned Trial Court that as per section 29 and Rule 9 (6) of PCPNDT Act, all CR No: 49729/2016 Mitu Khurana Vs State & Ors. 10 of 16 records required to be maintained under this act and the rules are to be preserved for a period of two years and if any criminal or other proceedings are instituted against any genetic centre/clinic, such records are to be preserved till the disposal of said proceedings. The ultrasound test document is dated 28/04/2005 and National Inspection and Monitoring Committee visited at the premises of Jaipur Golden Hospital on 03/06/2008 and before that no criminal proceeding was instituted against the said hospital and, therefore said hospital was not duty bound to preserve the said document in question (FormF) beyond the period of two years.
22. The revisionist has made allegation of hatching of criminal conspiracy against respondents no.2 to 5 for conducting said sex determination test upon her and actual commission of offence u/s 21 (1) of PCPNDT Act against respondent no.2 and u/s 21 (3) of the said Act against respondents no. 3 to 5. There is no doubt that conspiracy is always hatched in secrecy and seldom there is direct evidence of the same but the revisionist needed to prima facie bring some material on record from which it can be inferred that there was any such conspiracy for sex determination of her fetus. There is no material except for bald allegation on the basis of aforesaid ultrasound test, to prima facie infer that sex determination test was got conducted to determine the sex of her fetus. Even otherwise once the proceedings qua the radiologist, who had conducted the said ultrasound and the Mahajan Imaging Centre, where the said ultrasound was conducted, have been quashed by Hon'ble Delhi High Court and against the said order, CR No: 49729/2016 Mitu Khurana Vs State & Ors. 11 of 16 the SLP filed by original complainant (revisionist herein) was also dismissed, no liability prima facie for getting the alleged sex determination test through them can be fastened upon respondents no.2 to 5. Hence there is no infirmity in the prima faice observation of the learned Trial Court that there is no direct evidence or witness before whom sex was disclosed to accused no. 4 and 5 (respondents no. 3 and 4 herein).
23. Furthermore, nonarraying the casualty doctor, who recommended admission of the revisionist in Jaipur Golden Hospital and the gynaecologist who recommended the ultrasound test and thereafter provided treatment to the revisionist on the basis of said ultrasound, is a serious lacunae in the case of original complaint as no such alleged conspiracy could have been hatched without their involvement or at least without the involvement of gynaecologist. The gyanecologist had provided treatment to her and in case anything was amiss in the ultrasound test or anything was done contrary to the recommendations of the gynaecologist, she must have pointed out so in her treatment papers. Once it is not so, then in the absence of making allegations against the gynaecologist, no such allegation for sex determination test can be levelled against respondents no. 2 to 5.
24. Learned counsel for the revisionist has also assailed observation of learned Trial Court that since the revisionist was in severe pain, she was taken to Jaipur Golden Hospital, which was closer instead of Ganga Ram Hospital, where she wanted to go, on the ground that the revisionist was writhing in pain and CR No: 49729/2016 Mitu Khurana Vs State & Ors. 12 of 16 suffering from vomiting throughout the night but was not taken to Ganga Ram Hospital and couple of hours were got wasted, therefore the presumption raised by learned Trial Court in favour of respondents that she was taken to Jaipur Golden Hospital on account of time contingency is untenable. However, the said argument is nullified by the complaint given to ACP CAW Cell MarkA by revisionist herself and referred to by learned Trial Court, wherein she had stated that after eating cake, she wanted to have treatment with consent of her husband at home but she was taken to hospital.
25. The observation of learned Trial Court qua Ex. CW1/4 i.e. USG being incriminating against the accused, is a prima facie observation on the basis of case of the revisionist and not an independent conclusive finding that the husband being a doctor himself would not have kept the said so called incriminating document safely for about three years when the revisionist allegedly found the same, to put himself in trouble. I also do not find any substance in the argument raised on behalf of the revisionist assailing the reasoning of the learned Trial Court to the effect that revisionist, her parents and her sister all being doctors, it is highly improbable that they would not have seen the discharge summary. First of all, a patient is discharged from a hospital only when he/she recovers fully or to a great extent and when no further admission in hospital is required. At the time of discharge, the patient is handed over his/her discharge summary. Being a doctor, the natural conduct for the revisionist was to see the same to ascertain her diagnosis and treatment provided. In CR No: 49729/2016 Mitu Khurana Vs State & Ors. 13 of 16 case no such discharge summary was shown, the revisionist should have adopted all possible means to know the contents of the same which is not a case herein.
26. The argument of learned counsel for revisionist that the discrepancies/inconsistencies pointed out by learned Trial Court in the testimony of original complainant (revisionist herein) are insignificant, have no force as they become significant in view of the reasons given in the foregoing paras and in the absence of any other material to fasten the liability upon the respondents.
27. Another argument of learned counsel for revisionist that she had specifically stated in her complaint dated 12/03/2006 to local PS that from somewhere her inlaws came to know that she was carrying female babies, also has no significance as the revisionist had already delivered twin babies much prior to the said complaint i.e. on 11/05/2008. I also do not find any substance in the argument of learned counsel for the revisionist that since in the agreement dated 16/06/2006 it was agreed that Dr. Mitu will not be asked or forced to go for sex determination of the fetus or sex selective abortion in future by Dr. Kamal or by anyone from his family, therefore from the same it can be inferred that it was done in the past. Rather I am in agreement with the reasoning given by the learned Trial Court that the same cannot be treated as clear and unequivocal admission of any such past conduct. No such inference of sex determination done in the past can be inferred from the same. Furthermore it has not been explained as to why this particular CR No: 49729/2016 Mitu Khurana Vs State & Ors. 14 of 16 fact was not specifically mentioned in the agreement that earlier any sex determination test or sex selective abortion was carried out by the husband, if so.
28. Various other arguments raised by the revisionist are not significant and hence not discussed in detail as they do not bring out sufficient material for framing of charge against the respondents no. 2 to 5.
29. It is well settled that for framing of charge, there has to be existence of prima facie case or grave suspicion against an accused. It is not that charge can be framed against an accused on existence of slightest suspicion. It is also well settled that if two views are possible at the stage of charge, one favouring the accused has to be taken.
30. In view of the aforesaid discussion, it is clear that there was no sufficient material for framing of charge against respondent no. 2 to 5.
31. Before parting, it is pertinent to mention that there is allegation for commission of offence u/s 23 (1) of PCPNDT Act, 1994 against respondent no.2 and u/s 23 (3) of the said Act against respondents no. 3 to 5 (alleged first time offenders) and limitation provided for taking cognizance of the said offences is three years and fine as per section 468 (2) (c) Cr.P.C. Therefore clearly the cognizance of the offences taken beyond three years by learned Trial Court, was time barred. Furthermore there is no CR No: 49729/2016 Mitu Khurana Vs State & Ors. 15 of 16 valid compliance of section 28 (1) (b) of PCPNDT Act, 1994 of giving notice of not less than fifteen days in the manner prescribed to the appropriate authority by the original complainant qua the alleged offences and intention to make a complaint to the court. Hence taking of cognizance of the aforesaid offences by the learned Trial Court qua the respondents no. 2 to 5 was not correct.
32. Thus there is no infirmity or illegality in the order of learned Trial Court.
33. The revision petition is accordingly dismissed. Copy of this order alongwith TCR be sent back to Ld. Trial Court.
34. Revision file be consigned to Record Room.
Announced in the Open Court (Ashutosh Kumar)
on 27/01/2018 Special Judge02 (P.C. ACT), CBI
Distt. N/W, Rohini Courts, Delhi
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