VIJAY LAXMI Vs. STATE

JUDGEMENT

(1.) 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.