IN THE COURT OF SH. DHARMENDER SINGH, MM-03, NORTH-WEST,
Dr. Mitu Khurana Vs. Jaipur Golden Hospital & Ors.
C.C. No. :327/01/08
29th September, 2015
By this order, I shall decide the issue whether there is prima facie case for framing of charge against accused persons or not.
Record perused. Heard.
Present complaint has been filed by complainant Dr. Mitu Khurana alleging commission of offences by accused persons under Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter referred as PC-PNDT Act).
As per Complainant, she was married to accused no. 4 namely Dr.Kamal Khurana on 28.11.2004 and from the very beginning she was not treated well at her matrimonial house by her husband and other members of in-laws family. As per complainant, she became pregnant on 04.01.2005 and when accused no.4 to 6 (accused no. 5 Mrs. Indira Khurana (mother in law of complainant,) accused no. 6 Dipesh Madan
(nandoi) came to know that complainant was carrying twin babies, they started pressurizing her to go for sex determination in order to know whether fetus were male or female babies.
It is alleged by complainant that accused no. 4 to 6 hatched a conspiracy to get determination of sex of fetus and in pursuance of the same on 27.04.2005, at about 11:00 pm, accused no. 6 brought a cake containing egg. It is alleged that accused no. 4 to 6 were well aware that complainant was allergic to egg and whenever she eats the same, she develops acute abdominal pain and vomiting. It is alleged that without informing the complainant that cake was made of egg, she was offered cake which she consumed and it resulted in acute abdominal pain with vomiting to complainant. It is alleged that instead of taking her to Ganga Ram Hospital where she was getting anti-natal treatment, she was taken to Jaipur Golden Hospital against her wish. It is alleged that at Jaipur Golden Hospital, accused no. 3 namely Dr. Nitin Seth (radiologist) instead of conducting KUB (Kidney Urator and Bladder) Ultrasound, conducted the fetus ultrasound without consent and knowledge of complainant.
It is alleged that after above said ultrasound behaviour of accused no. 4 to 6 was changed from bad to worse and complainant was forced to go for abortion, however same was resisted by complainant. It is alleged that after birth of twin female babies on 11.08.2005, behaviour of accused no. 4 to 6 and other members of the in-laws
family was quite passive towards newly born babies. It is alleged that at the time of her ultrasound at Jaipur Golden Hospital, no declaration was got signed from her as per the requirement of PC-PNDT Act. It is alleged that in respect of ultrasound of complainant, even Form F was not prepared in accordance with the provisions of PC-PNDT Act. It is alleged that accused no. 3 was in fact an employee of accused no. 1 i.e. Jaipur Golden Hospital. It is alleged that in the above stated manner, sex determination test during pregnancy was conducted by accused persons.
It is alleged that complainant made a complaint to concerned appropriate authority for taking action against accused persons but same was not taken by Appropriate Authority, therefore, complainant after giving 15 days notice to concerned Appropriate Authority as per the requirement of Section 28 PC-PNDT Act filed the present complaint in this case.
In pre-summoning evidence, complainant examined herself as CW-1 and
also furnished on record certain documents. On the basis of pre-summoning evidence led by complainant, accused no. 1 to 3 were summoned qua offence punishable u/s 23(1) of PC-PNDT Act and accused no. 4 to 6 were summoned qua offence punishable u/s
23 (3) of PC-PNDT Act. Accused no. 2 i.e. Mahajan Imaging Centre and accused no. 3 challenged the summoning order of this court before Hon’ble Delhi High Court and Hon’ble Delhi High Court stayed the proceedings against accused no. 2 and 3 in this case.
As punishment provided for offences u/s 23 (1) and 23 (3) PC-PNDT Act is imprisonment of more than 2 years and case was instituted on complaint, so, complainant was called to lead pre-charge evidence.
In pre-charge evidence, complainant examined 15 witnesses including
herself. CW-1 Complainant Dr. Mitu Khurana. She was cross-examined at length by Defence Counsels.
CW-2 HC Shankar Singh. He was summoned with complaint record.
CW-3 SI Darshana. She was summoned with complaint record.
CW-4 ASI Narender Singh. He also was summoned with complaint record.
CW-5 Vinod Kumar Garg, Dealing Assistant, PC-PNDT, office of CDMO. He was summoned with record regarding raid conducted at premises of accused no. 1 by NIMC, Form F record and other related record. This witness was cross examined by Defence Counsel.
CW-6 Subhash Wadhwa, UDC, Delhi Commission for Women. He was summoned with complaint record. This witness was cross-examined by Defence Counsel.
CW-7 Dr. Tarun Jain from Hemraj Jain Hospital. This witness was summoned with admission record of complainant. This witness was cross-examined by Defence Counsel.
CW-8 Sh. Varun Chabra, Witness from National Commission for Women.
This witness was summoned with complaint record. This witness was cross-examined by Defence Counsel.
CW-9 Inspector Kehar Singh, PS Janak Puri. This witness was summoned with complaint record. This witness was cross-examined by Defence Counsel.
CW-10 Sh.A.K. Singh, Section Officer, PNDT Section, Ministry of
Health & Family Welfare, Government of India, New Delhi. He was summoned with record regarding raid conducted on the premises of accused no. 1 and other related record.
CW-11 Bijay Laxmi Nanda. She was called to prove the confession
allegedly made by accused no. 4 and to corroborate the version of complainant. This witness was cross-examined by Defence Counsel.
CW-12 Ms. Sabitha Dass, Record Keeper, Delhi Commission for
Women. She was summoned with record regarding the complaint made by complainant before DCW. This witness was also cross-examined by Defence Counsel.
CW-13 Mahesh Kumar, Ahlmad from the Court of Ld. ASJ, Dwarka Courts. He was summoned with complaint record.
CW-14 HC Bhuvnesh Kumar. This witness was summoned to prove the complaint given by complainant at PS Vikas Puri. This witness was cross examined by Defence Counsel.
CW-15 Ct. Naveen. This witness was summoned to prove the complaints given by complainant at PS Janak Puri. This witness was cross-examined by Defence Counsel.
After pre-charge evidence, parties advanced arguments on charge. They relied on various judgments of Higher Courts.
Complainant has relied on following judgments:
1. Mritunjoy Biswas Vs. Pranab @ Kuti Biswas & Anr. (SC 2007) (This judgment is regarding discrepancy in the testimony of witness).
2. State of U.P. Vs. Naresh (2011 SC) (This judgment is regarding discrepancy in the testimony of witness).
3. Narayan Singh Vs. Kala Ram @ Kallu Ram Kushwaha & Ors. (MP High Court 2014) (This judgment is regarding value of document collected through RTI).
4. Leelaben Jethabai Singhal Vs. State of Gujarat (Gujarat High Court 2015) (This judgment is regarding importance and sanctity of PC-PNDT Act).
5. Bhajan Singh @ Harbhajan Singh & Ors. Vs. State of Haryana (SC 2011) (This judgment is regarding discrepancy in the testimony of witness).
6. Kundula Bala Subramanium & Anr. Vs. State of Andhra Pradesh (SC 1993) (This judgment is regarding role of courts in case of procedural technicalities or insignificant lacunaes).
7. Mukesh Saini Vs. National Security Council Secretariat (Order of Central Information Commission regarding the document obtained through RTI).
8. Zaheda Vs. State of Maharashtra (Bombay High Court 2014) (This judgment is regarding maintenance of form F under PC-PNDT Act).
9. Suo Motu Vs. State of Gujarat (Gujarat High Court 2008) (This judgment is regarding maintenance of record under PC-PNDT Act).
10. Dr. Suhasini Umesh Karanjkar Vs. Kolhapure Municipal Corporation (Bombay High Court) (This judgment is regarding maintenance of record under PC-PNDT Act).
Ld. Counsel for Complainant has also relied on one compilation
containing Judgments/Orders of various High Courts and District Courts under PCPNDT Act.
On other hand, Ld. counsel for accused no. 4 to 6 has relied on following Judgments:
1. M/S Rudnap Export Import Vs. Eastern Associates Company & Ors. (Delhi High Court 1983) (This judgment is regarding evidentiary value of document filed by party but not exhibited).
2. Narsinbhai Haribhai Prajapati Etc. Vs. Chhatra Sinh & Ors. (SC 1977) (This judgment is regarding effect of improvement by witness).
3. Badruddin Rukonddim Karpude & Ors. Vs. State of Maharashtra (SC 1981) (This judgment is regarding effect of improvement by witness).
4. Kishore Chand Vs. State of H.P. (SC 1990) (This judgment is regarding circumstantial evidence and extrajudicial confession).
5. Balvinder Singh Vs. State of Punjab (SC 1996) (This judgment is regarding circumstantial evidence and extrajudicial confession).
6. Chittar Vs. State of Rajasthan (SC 1992) (This judgment is regarding extra Judicial confession).
7. Rahim Beg & Anr. Vs. State of UP (SC 1973) (This judgment is regarding extra Judicial confession).
8. State of Maharashtra Vs. Annappa Bandu Kavataga (SC 1979) (This judgment is regarding circumstantial evidence).
9. Sewak Ram Sobhani Vs. R.K. Karanjia & Ors. (SC 1981) (This judgment is regarding value of inquiry report).
10. Tek Chand & Anrs. Vs. Tek Chand & Ors. (SC 1986) (This judgment is regarding finding of commission).
11. Khedu Mohton & Ors. Vs. State of Bihar (SC 1970) (This judgment is regarding delay in prosecution).
12. Northern Mineral Ltd. Vs. Union of India (SC 2010) (This judgment is regarding delay in prosecution).
Now, the case is at the stage of consideration of charge. At the stage of charge, court has to see the prima facie case on the basis of evidence led by complainant.
“In State of Karnataka Vs L. Muniswamy, (1977) 3 SCR 113 : (AIR 1977 SC 1489), it was held that at the stage of framing charge the Court has to apply its mind to the question whether or not there is any ground for presuming the commission of the offence by the accused. As framing of charge affects a person’s liberty substantially, need for proper consideration of material warranting such order was emphasized.”
Now, court has to see whether on the basis of material/evidence produced by complainant, prima facie case for framing of charge is made out or not.
The salient features of evidence produced/led by complainant are following:
1. Case is mainly based on circumstantial evidence.
2. Complainant is principal/main witness to prove her case.
3. Complainant is relying on confession made by accused.
4. Qua deficiency of Form F, other than her testimony complainant is relying on evidence of PW-5 and 10.
In case of circumstantial evidence, it has been held by Supreme Court of India and various high courts that “In a case based on circumstantial evidence, it is now well settled that the circumstances from which the conclusion of guilt is to be
drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond a reasonable doubt and the established circumstances should be
consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence the Court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof.”
“In a case of circumstantial evidence, all the circumstances from which the conclusion of the guilt is to be drawn should be fully and cogently established. All the facts so established should be consistent only with the hypothesis of the guilt of the accused. The proved circumstances should be of a conclusive nature and definite tendency, unerringly pointing towards the guilt of the accused. They should be such as to exclude every hypothesis but the one proposed to be proved. The circumstances must be satisfactorily established and the proved circumstances must bring home the
offences to the accused beyond all reasonable doubt. It is not necessary that each circumstances by itself be conclusive but cumulatively must form unbroken chain of events leading to the proof of the guilt of the accused. If those circumstances or some
of them can be explained by any of the reasonable hypothesis then the accused must have the benefit of that hypothesis.”
In the present matter there is no direct evidence that if there is any witness before whom sex was disclosed to accused no. 4 and 5 by accused no. 3 and there is no document on which sex of the child is mentioned.
This court is of the considered view that in the present 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 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.
In case titled Namdeo Vs. State of Maharashtra (SC) 2007, CRI.L.J
The Hon’ble Supreme Court of India held that “Our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence.”
In light of above Judgment, now we see the quality of testimony of
complainant. This court is of the considered view that testimony of complainant is suffering from number of contradictions, improvement, omissions and inconsistencies. So, complainant is not a reliable witness.
In her pre-summoning evidence, complainant has stated that after
knowledge of twin pregnancy, she was pressurized for sex determination by accused no. 4 to 6 however in her pre-charge examination in chief she has stated that after knowledge of twin pregnancy, she was pressurized for sex determination by accused no. 4 (her husband) and accused no. 5 (mother in law).
As per case of complainant she was allergic to egg however she did not produce any medical document to this effect. In her cross-examination, she gave the reason that concerned record had been destroyed due to termite about 4-5 years back. She gave said statement on 02.06.2015 and present complaint was instituted in the year 2008 it means she had said record at that time but same was not filed alongwith complaint.
In reply to question regarding his presence on 27.04.2005 in the area of Rajender Place/Karol Bagh and taking lunch or other eatables in the market of said area she did not give clear reply although incident in question allegedly occurred on 27.04.2005 and question was very relevant to the same she could easily recollect the incidents of said date but she chose evasive reply which creates doubt on her version.
In her cross-examination, she stated that she was denied food and water for a whole day on many occasions however in her complaint given to SHO, Janak Puri Ex. CW-1/8 she stated that she was kept without food for one day.
In her testimony before court, she stated that on 27.04.2005 after eating cake containing egg she wanted to go for treatment at Ganga Ram Hospital although she was taken to Jaipur Golden Hospital. On the other hand, in complaint given to ACP CAW Cell Mark A she has stated that after eating cake she wanted to have treatment with consent of her husband at home but she was taken to hospital.
In her cross-examination, she has stated that around 2006, accused no. 4 Kamal told to complainant’s parents in her presence at her parental house that her father had to send a patient daily to his clinic for every night he spends with her. However, in her complaint u/s 200 Cr.P.C. filed in this case, she has stated that said thing was stated to her and there is no mention that same was said to her parents.
In her cross-examination, she denied the suggestion that when she went in Delhi University in campaign against female foeticide she used to tell her story to the students. On the other hand, in her complaint to ACP CAW Cell Mark A she has stated that through her campaign she shared her story with students of Delhi University.
Complainant is relying on confessions made by accused no. 4. As per case of complainant, the first said confession was made in the year 2006 by accused no. 4 in drunken state. The other confession was made in agreement Ex. CW-1/10 and third confession as was made by accused no. 4 before CW-11 Bijay Laxmi Nanda. The Law regarding Extra Judicial Confession has been dealt with by Hon’ble Supreme Court of India in number of judgments and now it is settled that
“An unambiguous extra judicial confession possesses high probative
value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of its falsity. But in the process of the proof of the alleged confession the court has to be satisfied that it is a voluntary one and does not appear to be the result of inducement, threat or promise envisaged Under section 24 of the Evidence Act or was brought about in suspicious
circumstances to circumvent Section 25 and 26 of the Evidence Act. Therefore, the court has to look into the surrounding circumstances and to find whether the extra judicial confession is not inspired by any improper or collateral consideration or circumvention of the law suggesting that it may not be true one. For this purpose the court must scrutinize all the relevant facts such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made and finally the actual words used by the accused. Extra Judicial Confession if found to be
voluntary, can be relied upon by the court alongwith other evidence on record.
Therefore, even the extra judicial confession will also have to be proved like any other fact. The value of the evidence as to the confession depends upon the veracity of the witness to whom it is made and the circumstances in which it came to be made and the actual words used by the accused.”
“An Extra Judicial Confession by its very nature is rather a weak type of evidence and requires appreciation with great deal of care and caution. Where an extra judicial confession is surrounded by suspicious circumstances its credibility becomes doubtful and it loses its importance. The courts generally look for independent reliable corroboration before placing any reliance upon an extra judicial confession.” Now, in view of above said law we scrutinize the confession as allegedly made by accused no. 4. So far the first confession as was made in the year 2006 is concerned, complainant herself did not rely on said confession and did not make any complaint/file any case. 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.
So far as second confession as mentioned in agreement Ex. CW-1/10 is concerned, there is no clear and unequivocal admission/ confession on the part of accused regarding conducting of sex determination.
So far as third confession as allegedly made before CW-11 BijayLaxmiNanda is concerned, said witness is not reliable. In her cross-examination, she stated that she had 2-3 meetings with complainant and accused no. 4 together however she does not remember that in which of said meetings accused no. 4 made confession/admission regarding conducting of sex determination. She stated that in said meetings she used to talk to complainant and accused no. 4 in the presence of both of them and in the year 2006 it was told by accused no. 4 Kamal Khurana that he was running his own clinic as Orthopedic consultant. On the other hand, complainant in her cross-examination stated that around 2006 when Kamal made demand to parents of complainant for sending the patients he was working as Clinical Assistant in Balaji Hospital on monthly salary basis.
So far as deficiencies of Form F is concerned, this court is of the
considered view that as per Section 29 and Rule 9 (6) of PC-PNDT Act, “all records required to be maintained under this act and the rules shall be preserved for a period of two years and if any criminal or other proceedings are instituted against any genetic centre/clinic, such record shall be preserved till the disposal of said proceedings.” This court is of the considered view that in the present matter document in question is of 27.04.2005 and National Inspection and Monitoring Committee visited at the premises of Jaipur Golden Hospital i.e. accused no. 1 on 03.06.2008 and before that no criminal proceedings was instituted against accused no. 1. So, accused no. 1 was not duty bound to preserve the document in question beyond the period of 2 years. Even otherwise CW-5 Vinod Kumar Garg, witness from PNDT who brought the record regarding Form F of April 2005 of accused no. 1 has stated in his cross-examination that he did not receive the Form F of said period and he cannot tell the name of person who received the same. He further stated that no list pertaining to the details i.e. name of the patient of form was prepared at the time of receiving of the form or thereafter. He neither admitted nor denied the suggestion that some of the forms are forged and fabricated.
This court is of the considered view that in view of the above material lacunaes in the evidence produced by complainant no case against accused persons has been made out which would warrant their conviction.
In view of the above, no prima facie case is made out against
accused no. 1, 4, 5 and 6 to frame charge against them. Accordingly, accused no. 1, 4, 5 and 6 are discharged. Their B/B & S/B are cancelled. Sureties discharged. The original documents of the sureties, if any on record, be released to the sureties after cancellation of the endorsements thereupon as and when so applied.
As proceedings against accused no. 2 and 3 are stayed vide order of
Hon’ble Delhi High Court, matter be put up on 16.11.2015 qua them.
Complainant is directed to inform the court whenever such stay is vacated as complainant is respondent in said matters before Hon’ble Delhi High Court.
Announced in the Open Court
today i.e. 29th September, 2015 (Dharmender Singh)
CC No. 327/01/08 Page No. 17 of 17