Vijay Laxmi vs State
2011 Latest Caselaw 1181 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       Crl. A. 218 /2001
%                                             Reserved on: 15th December, 2010
                                              Decided on: 28th February, 2011
VIJAY LAXMI                                                 ..... Petitioner
                                Through:   Mr. Mohit Mathur, Mr. Abhilash
                                           Mathur and Mr. Shardul Singh,
                                           Advocates
                       versus
                                                             ..... Respondents
STATE                           Through:   Mr. Pawan Bahl, APP for the State

Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA


1. Whether the Reporters of local papers may
   be allowed to see the judgment?                           Not necessary

2. To be referred to Reporter or not?                        Yes

3. Whether the judgment should be reported
   in the Digest?                                            Yes

MUKTA GUPTA, J.

By this appeal, the Appellant lays a challenge to the conviction for

offence punishable under Section 314 IPC and the order on sentence whereby

she has been directed to undergo rigorous imprisonment for a period of three

years and to pay a fine of `20,000/- and in default of payment of fine to

undergo further rigorous imprisonment for six months in case FIR 605/1997

registered at P.S. Mangolpuri.

2. Briefly the prosecution case is that an information was received at P.S.

Mangolpuri on 23rd June, 1997 vide DD No. 46B that a woman had died

during an operation in a clinic near Sanjay Gandhi Hospital. The information

was marked to ASI Rama Nand PW10 who went to the spot along with

Constable Raja Ram PW7 where a clinic in the name of Saar Chikitsalya was

being run. Dead body of a woman was found lying on the floor in that clinic

and one plastic bucket containing some pieces of flesh was also found lying

there. On the spot PW10 ASI Rama Nand met Sh. Raj Dev PW6, husband of

the deceased and recorded his statement who stated that the deceased Jarawati

was his wife and from the wedlock they had four children, two sons and two

daughters. His wife was six month pregnant and since they did not want

another child, she expressed her desire to get an abortion so he had brought

his wife to Saar Chikitsalya where the Appellant was practicing as a doctor.

They conveyed to the Appellant about the pregnancy and their desire for an

abortion to which the Appellant told them that she was an expert in abortion

and demanded `500/- which Raj Dev paid to her. His wife Jarawati was taken

inside the clinic for operation at about 2 p.m. and he was made to wait

outside. At about 4:00 p.m., when he enquired about his wife, the Appellant

informed that she has died during the process of abortion and the dead body

was lying at the table in the clinic. On the statement of PW 6 Raj Dev

Ex.PW6/A, PW10 ASI Rama Nand made an endorsement Ex.PW10/A and

sent the ruqqa through PW7 Constable Raja Ram. On the basis of this

information the above mentioned FIR was registered. A lady Const. Sudesh

PW1 was called telephonically and a photographer Raj Kumar PW4 was

summoned to take the photographs of the scene. The dead body and the

bucket containing blood and pieces of flesh were sent to the mortuary. After

completion of investigation, charge-sheet was filed against the Appellant.

After recording the prosecution evidence and the statement of the Appellant

under Section 313 Cr. P.C., the impugned judgment convicting and sentencing

the Appellant as already mentioned was passed.

3. Learned counsel for the Appellant challenging the conviction urged that

the Appellant was not qualified to perform abortion and she had asked PW6

Raj Dev to take his wife i.e. the deceased away to a hospital as her condition

was serious. However, as he did not take her, she died in her clinic. The

Investigating Officer has not seized any surgical equipment nor there was any

other equipment available at the spot to show that the Appellant conducted the

surgery resulting in the death of the deceased. Allegedly `500/- were given to

the Appellant by PW 6 and as per the prosecution case, the Appellant had not

gone out anywhere but after her arrest, on her personal search only `300/-

were recovered which falsify the version of PW6. The Appellant never

portrait that she was a qualified doctor who performed surgeries and on the

board outside her clinic her degree was shown as GAMS i.e. an Ayurvedic

Doctor. The Investigating Officer has not seized any clothes of the Appellant

or apron which was blood-stained, thus showing that the Appellant had

conducted this abortion. There are material contradictions in the statement of

PW6 Raj Dev and PW 10 ASI Rama Nand. It is pointed out that PW6 in his

testimony has stated that he was taken to the police station along with the

dead body where his statement was recorded. Whereas PW 10 has deposed

that he met PW 6 at the spot and his statement was recorded at the spot itself.

Even PW 7 Const. Raja Ram stated that all proceedings were conducted at the

police station which fact is contradicted by PW 10 who has stated that all the

inquest papers were prepared and proceedings were conducted at the spot.

Learned counsel has further contended that no seizure memo was prepared of

the bucket which had been recovered from the spot nor was the blood on the

floor as alleged lifted. Even, the arrest memo of the Appellant was not

prepared. Since, the link evidence is missing there is nothing to connect the

Appellant with the flesh found in the bucket or the blood. The Appellant

cannot be convicted of the offence. Therefore, the impugned judgment is

perverse, illegal and contrary to the facts on record. The learned Trial Court

comes to the conclusion that though there is no direct evidence, however, four

circumstances have been proved against the Appellant and thus holds her

guilty. It is contended that from the evidence adduced, except the first

circumstance that the Appellant was running a clinic in the name and style of

Saar Chikitsalya in Mangolpuri, rest three circumstances i.e. deceased was

carrying six months pregnancy and was brought by her husband to the clinic

of the accused for an abortion; the appellant took the deceased inside the

clinic for performing the operation where she died and her dead body was

recovered from inside the clinic and the medical evidence recording the cause

of death have not been proved by the prosecution and thus, the appellant is

liable to be acquitted of the charge framed. In the alternate, it is prayed that

the incident is of the year 1997, the Appellant has already undergone a

sentence of five months and 10 days. Thus, she be released either for a

sentence for the period already undergone or on probation. Reliance is placed

on State vs. Meera Kumari @ Rajrani, 1986(2) Crimes 630.

4. Learned APP for the State contends that there is sufficient material on

record adduced by the prosecution to prove the guilt of the Appellant. PW 6

Raj Dev has deposed about the six months pregnancy of his wife and the fact

that he had brought her for abortion to the clinic of the Appellant where it was

represented that the Appellant was competent to perform the abortion and

charged `500/- for the same. The wife of PW 6 died inside the clinic and

when the Appellant asked PW6 to take away the dead body of his wife

somebody from the street rang up the police which reached at the spot. The

fact that the Appellant was not a qualified doctor and thus not qualified to

perform an abortion has been admitted by her. Learned APP states that the

factum of performance of an abortion stands proved from the post-mortem

report Ex. PW9/A which opines that the flesh brought by the police in a

bucket was the material of conception and it is immaterial whether the flesh

material was of two months or six months conception. Minor contradictions

sought to be brought in the testimony of the witnesses in regard to the

proceedings conducted at the spot or at the police station do not go to the root

of the matter. Furthermore, PW 9 Dr. K. Goel has clearly opined the cause of

death to be injury caused during an attempt to evacuate the contents of

gestation. Hence, the appeal is liable to be dismissed being devoid of merit.

5. I have heard learned counsel for the parties and perused the records.

PW6 Raj Dev, the complainant/husband of the deceased has deposed about

the factum of taking his wife with six months pregnancy to the clinic of the

Appellant where the Appellant stated that she could safely abort the child as

she has been doing it earlier also for which she would charge `500/-. He has

further deposed that his wife was taken inside the clinic in operation room at

about 2 p.m. and at about 4:00 p.m. he enquired about his wife when he was

told by the Appellant that she died during the process of abortion. He went

inside the clinic and saw the dead body of his wife. The Appellant asked him

to take away the body from there. At that time somebody from the street

informed the police and the police came at the spot. This version of PW 6 is

corroborated by the photographs Ex. PW4/1 to PW 4/10(wherein Ex.PW4/1 to

Ex.PW 4/5 are the negatives).

6. Moreover, the defence taken by the Appellant is that she had informed

PW6 Raj Dev that she was not doing abortions and then he requested that she

may check up the lady otherwise, and her husband left saying that he will

come after one hour. She checked and found that her condition was serious

and suggested that she should be taken to a competent doctor. The appellant

waited for her husband for more than 2 hours but he did not turn up and in the

meantime that lady expired. Thus, the defence of the appellant is that it was

not an attempt to abortion but because the condition of the deceased was

serious she died. However, this is not supported by post mortem evidence. As

per opinion of PW 9, Dr. K. Goel, "Injuries to the vagina and uterus were

ante-mortem in nature caused by other party. Injury has been caused during

an attempt to evacuate the contents of gestation. The cause of death was

opined to be "hemorrhagic shock and obstetric shock as a result of injuries to

uterus". In the cross-examination of PW 9 Dr. K. Goel no suggestion has

been given that this abortion and the injuries resulted from the serious

condition of the deceased and not because of evacuation. The only cross-

examination conducted was with regard to the time as to when the injuries

might have been inflicted which PW 9 in his cross-examination has clarified

that these injuries could have been affected half an hour or one hour prior to

the death. The post-mortem on the peson of deceased was conducted on 24 th

June, 1997 and time since death as opined by the doctor was about 24 hours

which coincides with the version given by the husband of deceased. PW9 in

his cross-examination has also clarified that the death in this case could have

taken place between 1.30 to 4.30 p.m. on 23rd June, 1997.

7. I also do not find any merit in the defence of the Appellant that even as

per PW 6 the Appellant had not gone out of the clinic and that PW 6 had

given `500/- to the Appellant for performing the abortion. However, when her

personal search was conducted only `300/- were found from her thus belying

the version that PW 6 gave her `500/-. Merely because `200/- less were

found in the pocket of the Appellant, it would not be a ground to disbelieve

PW 6 that he gave her `500/- for performing the operation.

8. The next contention raised by the learned counsel for the Appellant also

deserves to be ignored that the prosecution has failed to prove that it was a six

months old foetus. The requirement of Section 314 IPC is, "whoever with an

intent to cause miscarriage of a woman with child does an act which causes

the death of such woman". The age of foetus or the gestation period is not

essential to be determined for the applicability of the Section. The provision

of Section 314 IPC is clearly attracted in the present case and the age of foetus

or the doctor not opining the period of gestation, would not be fatal to the

prosecution case. Suffice would it be to state that PW 9 Dr. K. Goyal has

opined that the material in the bucket brought by the police was anatomically

consistent of placenta and umbilical cord with blood clots thus proving that

there was a foetus which was aborted by the Appellant and the same was put

in a bucket.

9. Failure of the police to seize any surgical equipment or surgical

material or bloodstained cloths of the Appellant would not belie the

prosecution version of PW 6 Raj Dev duly supported by the testimony of

PW4, PW7 and PW10. No seizure of equipments or blood-stained clothes of

the Appellant would not be sufficient to discard the entire case of the

prosecution. Similarly, the contradiction between the version of PW 7 Raja

Ram and PW 10 SI Rama Nand regarding the preparation of inquest papers

and other proceedings being conducted at the police station or at the spot do

not hit at the root of the matter that the deceased died during an attempt to

evacuate the gestation material and that umbilical cord was found in a bucket

which was recovered at the spot. Also no explanation has been rendered by

the Appellant in response to the question put to her relating to recovery of a

bucket with flesh in it during her examination under Section 313 Cr.P.C.

except denying that there were no pieces of flesh in her clinic and nothing was

recovered by the police. This fact is belied by the testimony of PW 10 ASI

Raja Nand and PW 6 Raj Dev that in the clinic, they found a dead body lying,

blood on the floor and bucket having flesh in it. This fact is also proved by

the photographs Ex. PW4/6 to PW4/10 which show that there was a bucket

recovered at the spot. A false explanation is an additional link in the chain of

circumstances against the accused. Law on this aspect has been settled by the

Hon'ble Supreme Court in a catena of decisions as in Aftab Ahmad Ansari vs.

State of Uttranchal, (2010) 2 SCC 583.

10. As regards the non-preparation of the seizure memo of the bucket,

which contained the gestation material i.e., a dead foetus, PW10 has stated

that the bucket in which the flesh was contained and the dead body were taken

into possession vide inquest papers Ex.PW10/B and were sent to the hospital.

There is no cross-examination of PW10 that the deadbody and the bucket with

the flesh was not sent to the hospital. This version of PW10 is corroborated by

PW9 Dr. K. Goyal who stated that the dead body along with a plastic bucket

consisting of product of conception was brought by police on 24 th June, 1997

at 12.05 a.m. PW9 has also not been cross-examined on this aspect and thus

his testimony has also gone unchallenged on this count. Moreover vide Ex.

PW 3/A the copy of the register of the Malkhana it has been proved that the

sealed case property received in 3 pulanda from the hospital was deposited in

the Malkhana. After the samples and the products were received from the

hospital PW 3 Constable Naresh has proved vide his testimony in the Court

that there was no tempering with case property till it remained in his custody.

Hence, in view of the evidence placed on record, I find no merit in the

contentions of the learned counsel for the Appellant. There is no infirmity in

the judgment convicting the Appellant for the offence punishable under

Section 314 IPC.

11. As regards the quantum of sentence, the Hon'ble Supreme Court in

Jacob George vs. State of Kerala 1994 Crl.L.J. 3851 in similar circumstances

while upholding conviction, modified the sentence of imprisonment to the

period already undergone and enhanced the fine. Though the loss suffered by

PW6 Raj Dev and his four children cannot be countenanced in monetary

terms but for the betterment of their future and in the interest of justice, in my

opinion, it would be appropriate that if the sentence of imprisonment is

modified to the period already undergone and the fine is enhanced to `1 lac;

the same would meet the ends of justice. Thus, the order on sentence dated

26th February, 2001 is modified by reducing the period of imprisonment to the

period already undergone and directing the Appellant to pay a fine of `1 lac

and in default of payment of fine, to undergo simple imprisonment for a

period of one year. The fine will be deposited by the Appellant with the

learned Trial Court within 12 weeks from today. In case the fine amount is

realized, `90,000/- out of it would be paid to PW6 Raj Dev, husband of the

deceased and her four children in equal proportions by the learned Trial Court.

12. The appeal is accordingly disposed of maintaining the conviction of the

Appellant for offence punishable under Sec. 314 IPC, however modifying the

sentence as above.

                                                          (MUKTA GUPTA)
FEBRUARY 28, 2011/dk                                          JUDGE