Dr. Parthsarthi S/O. Mukund ... vs The State Of Maharashtra Thr. ...
2022 Latest Caselaw 7700 Bom

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        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  NAGPUR BENCH, NAGPUR.


          CRIMINAL APPLICATION (APL) NO. 27 OF 2017

        Dr. Parthsarthi s/o Mukund Shukla,
        Aged about 45 years, Occ.: Medical
        Practitioner, R/o Gangadhar Plot, Akola.
                                                   ... APPLICANT
                             VERSUS

        The State of Maharashtra,
        through Police Station Officer,
        Ramdaspeth Police Station,
        Akola.

                                             ... NON APPLICANT

        Harish s/o Manoharlal
        Chhutlani, Aged about 34 years,
        Occ. Business, R/o Nimwadi,
        Sindhi Camp, Akola, Tah. &
        District - Akola.

        (Amendment carried as per
        Court's order dated 30.06.2017)

                                               ... INTERVENER
____________________________________________________________
       Shri Firdos Mirza, Advocate for the applicant.
       Shri H.D. Dubey, A.P.P. for non-applicant/State.
       Shri O.S. Harwani, Advocate (Assist to prosecution)
______________________________________________________________

              CORAM                  : VINAY JOSHI, J.
              JUDGMENT RESERVED ON   : 29.07.2022.
              JUDGMENT PRONOUNCED ON : 05.08.2022
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JUDGMENT :

Heard finally by consent of learned Counsel appearing for

the parties.

2. The applicant has applied for discharge from all the

offences, however the Trial Court has declined to discharge the

applicant for the offence punishable under Sections 120-B, 201, 417,

419, 420, 467, 468, 469 and 470 read with Section 34 of the Indian

Penal Code and therefore, this application.

3. Briefly stated, at the instance of report dated 16.12.2008

lodged by one Manoharlal Chhutlani, crime was registered. It is the

informant's case that his grandson was a pre-mature baby to whom

initial treatment was given at different places. However, as the baby's

condition deteriorated, on 11.11.2008, he had admitted the baby aged

2.5 months in the Hospital of the applicant who is a Doctor. The baby

was admitted in ICU and placed in the incubator. There were total eight

babies kept in different incubators. It is stated that on 15.11.2008,

when the informant went to see his grandson, he found that it was an

another baby having black complexion. He suspected about the change

of baby, therefore, reported the matter to the Police. Since informant

Chhutlani disowned the baby, which was said to be their baby, it was

sent to Nursing home.

4. On 10.11.2008 one Mahadev Dhaberao has also admitted

his baby of similar age in the applicant's Hospital. While his baby was

under treatment, on 15.11.2008 in the wee hours, he was informed

that baby's condition is critical and then, it was informed that his baby

died. Thereafter, the dead body was handed over to Mahadev

Dhaberao, who in turn cremated the dead body. During the course of

investigation, the Police visited the place of cremation, exhumed and

collected samples for DNA profile. The blood samples of the Dhaberao

couple, Chhutlani couple, and samples of disowned baby (alive baby),

were collected and sent for DNA profiling. It was revealed from DNA

profiling that Dhaberao couple was the biological parents of the

disowned baby, which was alive. However, DNA profile reveals that

Chhutlani couple is not biological parents of the dead baby, which was

cremated.

5. It is the prosecution case that the applicant (accused no.1)

has kidnapped the baby of Mr. Chhutlani as well as caused death of

baby due to negligence. Likewise, the applicant was also charged for

the offence of cheating and preparation of false treatment papers. So

far as the charge of kidnapping and causing death by negligence is

concerned, the Trial Court has discharged the applicant from both the

offences for which there is no challenge. The rejection of discharge

pertains to the charge of cheating and preparation of false documents,

which is under challenge.

6. Learned counsel appearing for the applicant would submit

that due to mistake dead body of Chhutlani family was handed over to

Dhaberao family as belonging to them. There was neither false

representation nor the applicant was to gain anything by such

misrepresentation. There is no dishonest intention, but it was mistaken

act. Moreover, it is argued that there is no material in the chargesheet

so as to proceed with the charge of cheating and forgery. It is submitted

that co-accused Dr. Vaibhav Sapkal (accused no. 3) has been discharged

by this Court in Criminal Application(APL) No.65 of 2017 against

whom the similar charges were leveled.

7. The learned counsel for the applicant took me through the

impugned order to contend that the learned Trial Court seriously erred

in appreciating the material on record. It is submitted that the Trial

Court without any material held that charge is to be framed for

aforesaid offences. It is submitted that the Trial Court seriously erred in

relying on the statement of co-accused, which is totally inadmissible.

Moreover, it is submitted that the Trial Court has relied on the

statement of Compounder Ashok Adagade, which does not disclose any

material to sustain the charge of cheating and forgery.

8. On the other hand, learned A.P.P., as well as learned

Counsel appearing for the informant has supported the impugned

order. It is contended that the role of Dr. Sapkal (accused no.3) was

quite distinct than the applicant. Moreover, the learned A.P.P. has

pointed out the statement of co-accused Balkrushna Dhore (accused

no. 2), co-accused Dr. Kavita Adhau (accused no. 4) to contend that

their statement makes out a prima facie case of cheating and forgery. It

is stated that since the statement of co-accused was recorded prior to

their arrest, it can be taken into consideration for framing charge.

9. Considered the rival submissions, charge-sheet and the

impugned order of rejection of discharge application. The applicant is

seeking discharge on the premise that unless there is sufficient material

to proceed further, it is abuse of the process of Court in framing charge.

It is well settled principle that at the time of framing charge, the test is

to see whether there is material to proceed further and not to convict.

Certainly at this stage the Court is empowered to sift the material to the

limited extent to find out whether a case is made out for framing

charge.

10. I may refer to the observations of the Supreme Court in

case of P.Vijayan Vs. State of Kerala and anr. AIR 2010 SC 663 , wherein

it is ruled that at the stage of discharge the Judge is not a mere post

office to frame the charge at the behest of prosecution, but has to

exercise his judicial mind to facts of a case in order to determine

whether a case for trial has been made out by prosecution. In reported

case of Union of India Vs. Prafulla Kumar Samal and anr. (1979) 3 SCC

4, the Supreme Court expressed that while considering the question of

framing the charges under Section 227 of the Code of Criminal

Procedure, the Court has the undoubted power to sift and weigh the

evidence for the limited purpose of finding out whether or not a prima

facie case against the accused, has been made out.

11. In another decision of the Supreme Court in case of

Jitendra Bhimraj Bijja & ors. Vs. State of Maharashtra, AIR 1990 SC

1962, it is observed that at the stage of framing the charge, the Court is

required to evaluate the material and documents on record with a view

to finding out if the facts emerging therefrom taken at their face value

disclose the existence of all the ingredients constituting the alleged

offence. The Court may for this limited purpose sift the evidence as it

cannot be expected even at that initial stage to accept all that the

prosecution states as gospel truth even if it is opposed to common sense

or the broad probabilities of the case.

12. In view of the above settled position, sufficiency of material

to frame charges needs to be examined. Learned Counsel for the

applicant took me through the statement of co-accused Balkrushna

Dhore (accused no. 2) recorded on 21.12.2008. He stated that at

relevant time there were eight babies kept in the incubator. He found

that one of the baby was critical and thus, he has informed to the

applicant in that regard. It is his statement that co-accused Dr. Kavita

Adhau as well as Applicant have examined the baby and found it to be

dead. It is his statement that the applicant has asked him to change the

baby with other one. Though learned A.P.P. has laid much stress on said

statement, however, the applicant has strenuously argued that the

statement of co-accused cannot be considered even at the time of

framing of charge. In this regard, he relied on the decision of this Court

in case of Laxmi Koli Babita vs. State of Maharashtra 2005 ALL MR

(Cri) 571, wherein it is held that confession of co-accused cannot be

called in aid at the time of framing of charge.

13. It is submitted that the statement of accused no.2

Balkrushna Dhore was recorded prior to his arrest, and therefore, it is

admissible. In response, the applicant relied on the decision of the

Hon'ble Supreme Court in case of Aghnoo Nagesia vs. State of Bihar

AIR 1966 SC 119 to contend that even if a confession made by a person

who is free and not in police custody before commencement of

investigation is inadmissible. In view of that it is not possible to

consider statement of co-accused.

14. The learned A.P.P. took me through the statement of accused

no. 4 Kavita Adhau. In her statement she has stated that after 2-3 days

from the occurrence, the applicant got prepared fresh treatment papers

of the baby through co-accused Dr. Sapkal (accused no.3). Admittedly,

her statement is of hearsay nature. Besides that it is a statement of co-

accused. Though allegedly Dr.Sapkal (accused no.3) at the instance of

the applicant has newly prepared the treatment papers, however,

considering the said material, he has been discharged by this Court.

Pertinent to note that the principal allegations of change of treatment

papers are against the co-accused Dr. Sapkal, however he has been

discharged. Therefore it is difficult to use same material against the

applicant.

15. Moreover, my attention has been invited to the statement of

one Gangabai Solanke, who is the sister of Mahadeo Dhaberao. It is

pointed out that as per her statement when a dead body of a baby was

handed over, they were told not to disclose the things. Merely, asking

this witness for not to disclose the things, does not sense anything to

connect the applicant with the offence of cheating and forgery. Even if

the evidence which the prosecution is proposd to adduce is fully

accepted before challenge, it can not show the commission of offence

and therefore there are no sufficient grounds for proceeding further.

16. Besides that the prosecution is unable to point out any

material which can prima facie form a basis to proceed against the

applicant. Even if the admissible statement of the witnesses have been

transmitted into evidence, it falls short to make out a prima facie case.

There is no material to indicate that since inception the accused with

deceitful intention made a false representation. There is no material

warranting applicant to undergo a trial, which would be a futile

exercise. I may reiterate that as regards to the charge of cheating is

concerned there is no admissible material, whilst about the forgery Dr.

Sapkal (accused no. 3) against whom main allegation lies, is already

discharged. The applicant is entitled for discharge in crime No.255 of

2008 registered with Ramdaspeth Police Station, District Akola. The

applicant has made out a case of discharge, hence the impugned order

needs interference.

17. In view of the above, the application is allowed. The

impugned order dated 03.12.2016 is hereby quashed and set aside. The

applicant is discharged from rest of the offences.

(VINAY JOSHI, J.)

Trupti

TRUPTI SANTOSHJI AGRAWAL

05.08.2022 15:05