Shri Rajesh Bhardwaj vs The State
2007 Latest Caselaw 1582 Del

JUDGMENT

Reva Khetrapal, J.

1. This is an application filed by the appellant under Section 389 of the Code of Criminal Procedure, seeking suspension of his substantive sentence during the pendency of the appeal in this Court.

2. The appellant was convicted for the offence under Sections 313/34 IPC by the Addl. Sessions Judge, Delhi and sentenced to undergo imprisonment for a period of 10 years and to pay a fine of Rs. 10,000/-, in default of payment of fine, to further undergo rigorous imprisonment for a period of one year by judgment dated 28th August, 2006 and order on sentence dated 5th September, 2006.

3. Shorn of detail, the prosecution case is that the appellant, who is the husband of the complainant/Poonam along with his mother, co-accused Smt. Naraini Devi was instrumental in causing the miscarriage of the complainant/Poonam. As per the allegations of the complainant, a tablet was administered to her by her husband on 5th December, 2002, and again on 7th December, 2002 her mother-in-law administered a second tablet to her, ostensibly on the ground that the same would prove beneficial to the health of the child in her womb, but as a result of consuming the aforesaid tablets, she started bleeding on 8th December, 2002 and was taken to a hospital by the name of Pariwar Sewa Sansthan, Arjun Nagar, where her pregnancy was terminated against her will, after getting a printed proforma signed from her.

4. The version of the appellant and his mother Smt. Naraini Devi, on the other hand, is that no tablet was ever administered by them to Smt. Poonam and that in the night intervening 6th/7th December, 2002, Poonam felt pain in her abdomen and was taken to Pariwar Sewa Sansthan, Arjun Nagar on the morning of 7th December, 2002, where she was registered for delivery. She was examined by Dr. Renu Gupta (PW-5) and told that continuation of her pregnancy would entail serious risk to her life and advised to visit the hospital empty stomach on 9th December, 2002 for Medical Termination of Pregnancy (for short MTP). On 9th December, 2002, her pregnancy was medically terminated with her full consent.

5. Learned Counsel for the appellant, Shri Aman Lekhi vociferously contends that a bare perusal of the judgment of the learned trial judge is sufficient to exonerate the appellant of the offence for which he was charged as there are glaring inconsistencies and contradictions which completely demolish the case of the prosecution. Relying upon the judgment of the Hon'ble Supreme Court in Madan Raj Bhatia v. State of Rajasthan to contend that the conviction of the appellant in the present case cannot be sustained for paucity of evidence, learned Counsel contends that there is not an iota of evidence on record to show that the appellant was responsible for causing the miscarriage of the complainant, and, on the other hand, there exists clear documentary evidence in the form of Ex. PW-1/B, which shows that the consent of the complainant/PW-1 for the medical termination of her pregnancy had been taken in the hospital. Further, there is evidence in the form of testimony of PW-5 Dr. Renu Gupta, who categorically stated in the witness box that it was the complainant/PW-1, who had come to the Clinic for the medical termination of her pregnancy.

6. In so far as document Ex. PW-1/B is concerned, learned Counsel for the appellant urges that the said document was prepared by the counsellor and bears the signature of the counsellor at point 'Y' as well as the signature of the anaesthetist at point 'Z', apart from the signature of the doctor, Dr. Renu Gupta at point 'X-1' and the signature of the complainant/Poonam in token of her consent at point 'X' thereon, but despite this the learned Addl. Sessions Judge has chosen to convict the appellant on the bald statement of PW-1 Smt. Poonam.

7. Reference was also made by learned Counsel for the appellant Mr. Lekhi to the cross-examination of PW-5 Dr. Renu Gupta, the relevant portion of which is reproduced hereunder:

It is correct that patient had come to me twice first on 7.12.02 and second time on 9.12.02. On first day i.e. on 7.12.02 she came to me and she was examined. She was accompanied by her husband. She wanted to have a MTP done. However, since MPT is to be done under general anaesthesia she was required to be empty stomach and was accordingly advised by the anaesthetist to come empty stomach for the Medical Terminate of Pregnancy (sic.).... Patient was conscious when she went from our clinic. she had gone of her own with her husband. There was no pressure upon me to medically terminate her pregnancy from any side.

8. Mr. Lekhi submits that the aforesaid cross-examination of PW-5 Dr. Renu Gupta completely belies the version of the prosecution, while at the same time fully corroborating the version of the defense. There is not a whisper in the statement of this prosecution witness, the most material of all the witnesses, that the consent of the patient (PW-1 Poonam) had not been obtained and the MTP was done without her consent nor, in fact has the prosecution cross-examined the witness on this aspect. Significantly also, there is not a word in the testimony of the witness regarding administration of any tablet to the patient by anyone which could have resulted in the termination of her pregnancy; or that the patient was bleeding when she came to the Clinic.

9. Mr. Lekhi points out that the testimony of PW-1 Poonam, on the other hand, is to the effect that she started bleeding when she consumed the pills doled out to her by her husband and mother-in-law. Not only is the aforesaid fact, he contends, falsified by the testimony of PW-5 Dr. Renu Gupta, but the same is also been belied by document Ex.PW-1/B. A bare glance at the said document shows that there exists no mention of any discharge having taken place as on 7th December, 2002 or subsequently. At page 2 of the document Ex.PW-1/B, there exists a column Gynaecological Examination, wherein there is a specific endorsement that there existed no discharge.

10. Interestingly, learned Counsel for the appellant points out that while the mother of the appellant, co-accused Smt. Naraini Devi was acquitted of the charge under Section 313 IPC, and the learned Addl. Sessions Judge held that there existed no evidence against Smt. Naraini Devi, to hold her accountable for the miscarriage of her daughter-in-law, the appellant was convicted on the very same evidence. It is submitted that if the allegation of the administration of the second pill is not taken to be correct, as held in the judgment, then, there exists nothing on record to show that anything transpired on 7th December, 2002 which could have led to the miscarriage of the complainant. To put it differently, if there exists no evidence on record to show that any tablet was administered to the complainant on 7th December, 2002 and Smt. Naraini Devi is held not to have administered any tablet to the complainant, the appellant could not have been convicted on the ground that the second tablet was administered to the complainant on 7th December, 2002 which led to her bleeding.

11. Learned Counsel for the appellant strongly contends that apart from the fact that the entire judgment is replete with surmises and conjectures, the judgment is full of inferences drawn by the learned Sessions Judge regarding which there is no evidence on record at all. Thus, for instance, the learned Judge observes as under:

It is a matter of common knowledge that up to seven weeks of pregnancy can be terminated with oral administration of Mifetristone followed by administration of Mesoprostol. Mesoprostol is given after 2-3 days of administration of Mifetristone. The patient usually bleeds within 48 hours of administration of Mifetristone and sometime after administration of second pill.

12. Learned senior Counsel submits, and indeed it is not denied by Shri Sunil K. Kapoor, learned Addl. Public Prosecutor that there exists no evidence on record (either oral or documentary) with regard to the names of the tablets allegedly administered to the complainant and the aforesaid principles of medical jurisprudence culled out by the learned trial judge are only inferences drawn by him, the source of which is not mentioned in the judgment. Learned Counsel further contends that the aforesaid interferences were not put to the accused in his statement under Section 313 Cr.P.C., nor in fact has any prosecution witness deposed about the same. The learned Judge thus took cognizance of extraneous factors in arriving at the conclusion of guilt against the appellant.

13. Ex. PW-1/B, he points out, and rightly so, sets out the Indication for Termination as follows:

Continuation of pregnancy would involve serious risk to life or grave injury to the physical and mental health of the woman.

Yet, the learned Judge has convicted the appellant by observing:

Ex. PW-1/B narrates that there was a history of medical interference during the pregnancy.

14. Mr. Lekhi apart from contending that the learned trial Judge erred in treating the uncorroborated testimony of the complainant/Poonam as gospel truth, though the oral testimonies of the prosecution witnesses as well as the documentary proof on record completely belied the case of the prosecution, submits that the learned trial judge did not take note of the fact that as per complainant herself uptil 28.12.2002 she resided in her matrimonial home. He contended that there exists no explanation as to why the FIR in the present case was registered on 01.05.2003, though the alleged offence occurred on 09.12.02.

15. Further, as per the complainant herself, the original complaint made to P.S. Welcome on 30.12.02 was written by her in Hindi and the same was got translated and typed in English by the typist at her parental town, Bahadurgarh. The complainant has further stated that at the time of getting the complaint translated and typed in English, she was accompanied by her brother. However, neither the original complaint has been produced nor the brother of the complainant has been examined in the court.

16. Mr. Lekhi, learned senior Counsel has also referred to the testimony of PW-1 Smt. Poonam to point out that the complainant herself at one stage of her cross-examination admitted that she was aborted by the doctor on 09.12.2002 with her consent as follows:

I was aborted by the doctor on 09.12.02 at my consent.

17. Then again, learned Counsel contended that though the prosecution's own case is that the complainant was taken to the Clinic on two occasions i.e. on 07.12.02 and again on 09.12.02, and, in fact the prosecution's own document Ex.PW-1/B shows that the complainant visited the clinic on 07.12.02 in the first instance and then again on 09.12.02, the complainant in her testimony categorically stated that she was taken to the hospital only once on 09.12.02. Though, confronted with her statement under Section 161 Cr.P.C., she nevertheless stuck to the stand adopted by her that she did not visit the hospital with her husband and mother-in-law on 07.12.02.

18. Learned senior Counsel lastly submitted that the appellant was on bail during the entire period of his trial and had never misused the liberty of bail granted to him. He urged that since there is reasonable probability of the appellant succeeding in the appeal, it will be in the interest of justice, if pending the disposal of the appeal, the substantive sentence of the appellant is suspended and the appellant is released on bail.

19. All the above has not been disputed by the learned Addl. Public Prosecutor. Apart from the aforesaid, in my view, it also cannot be lost sight of that it is an admitted fact that there existed a matrimonial dispute between the parties, regarding which a case under Sections 498-A/406/506 IPC, being FIR No. 4 of 2003 dated 7.01.03, was registered at Police Station Linepar, Bahardurgarh (Haryana) at the behest of the complainant. The present FIR under Section 313/34 IPC was got registered on 01.05.03 by her at Delhi and, not surprisingly is alleged by the defense to be an after-thought on the part of the complainant and her father, the incident having occurred six months prior to the registration of the F.I.R. The father of the complainant, it is also not in dispute, was posted as Sub-Inspector with the Delhi Police on the date of the registration of the F.I.R.

20. Keeping in view the totality of the facts and circumstances including the fact that there exists no possibility of the appeal being boarded for hearing in the near future, it is ordered that pending the disposal of the appeal, the substantive sentence of the appellant shall remain suspended and the appellant shall be released on bail, subject however to his furnishing a personal bond in the sum of Rs. 25,000/- with two sureties in the like amount to the satisfaction of the concerned Court and on his depositing the entire fine amount. The appellant shall produce the receipt showing payment of the fine amount before the Jail Superintendent at the time of his release.

21. Application stands disposed of accordingly.

Copy of this order be sent to the Jail Superintendent concerned. Copy be also given dusty to counsel for the appellant as prayed.