Criminal Appeal No. 2 of 1998

3rd August, 1999

Petitioner Counsel: Shri. S. B. FARIA
Respondent Counsel: Shri. SUDIN USGAONKAR

Cases Cited:
Ambalal D Bhatt V. The State Of Gujrat, A.I.R. 1972 S.C. 1150 [Para 4]
Dr. Jacob Geroge V. State Of Kerala, (1994) 3 S.C.C. 430 [Para 16]

JUDGMENT

BATTA, J. :- The respondent was tried for the death of Sajida Bi aged 18 years while causing miscarriage under Section 314 of the Indian Penal Code. The prosecution had examined 8 witnesses in support of the charge. The respondent was acquitted of the charge by impugned Judgment and state has come in appeal against the said acquittal.

2. Briefly stated, the prosecution case is that the respondent had caused the death of Sajida Bi aged about 18 years while terminating the pregnancy in his clinic unauthorisedly. The death is reported to have taken place on 28th November 1989 at about 11.30 a.m.. The respondent came to the house of Sajida Bi on the same day at about 5.30 p.m. and informed her father Sayed Abdul Rahim P.W.3 that she had expired in his clinic at about 10.30 a.m.. Sayed Abdul Rahim P.W. 3 wanted that the postmortem of Sajida Bi be conducted and the respondent told him that it will take three days and the dead body will start smelling. The respondent agreed to give death certificate. The respondent handed over a letter to P.W.3. According to P.W.3, in the certificate, the cause of death was shown as low blood pressure and jaundice. In the circumstances, F.I.R. was lodged with the police by Shaikh Abdul Wahab P.W.2, who is nephew of P.W.3 Sayed Abdul Rahim. The F.I.R. was lodged at 10.30 p.m. on the same day. The investigation into the matter was conducted by the police and the respondent was put up for trial for the offence under Section 314 I.P.C.

3. Learned Public Prosecutor Shri Faria urged before us that the points to be determined in this case are whether the miscarriage in question was carried out by the respondent and whether the death was due to negligence of the respondent. He submitted that the fact that the deceased Sajida Bi died in the clinic of the respondent is not disputed, but the respondent disputes the factum of the miscarriage carried out by him. According to learned public prosecutor, the cause of death, according to certificate P.W. 1/D issued by the respondent, is stated to be hypo-tension (low blood pressure), jaundice and general debility, whereas, according to Dr. Silvano dias Sapeco P.W.1, who conducted the postmortem on the dead body of Sajida Bi, the cause of death was due to shock during termination of early pregnancy and it was a case of unnatural death. It was further urged by him that the respondent is not qualified to terminate the pregnancy and that inspite of overwhelming evidence on record, the learned Additional Sessions Judge acquitted the respondent taking into consideration factors which are not material. Thus, according to learned Public Prosecutor, the acquittal of the respondent cannot be sustained and is liable to be set aside. He, therefore, contends that the respondent be punished for the offence under Section 314 I.P.C., which had been duly proved by the prosecution.

4. On the other hand, learned advocate Shri Sudin Usgaonkar urged before us that pregnancy can be terminated by medical practitioner for saving life. After taking us through Sections 87, 88 and 314 of the Indian Penal Code it was urged that the evidence on record was not sufficient to prove the charge under Section 314 I.P.C. and the learned Additional Sessions Judge had rightly acquitted the respondent. He pointed out that the Investigating Officer neither attached the foetus which was removed nor the curette, which is said to be used for termination of pregnancy; that the prosecution has not examined any employee of the clinic and has not established direct or approximate cause resulting into the death of deceased Sajida Bi; that the respondent has denied to have issued certificates Exhibits P.W. 1/C and P.W. 1/D and the prosecution has failed to establish that the certificates issued were in fact issued by the respondent. Relying upon paragraph 8 of the Judgment of the Apex Court in Ambalal D. Bhatt V. The State of Gujarat (A.I.R. 1972 S.C. 1150), it is urged by learned advocate for the respondent that the acquittal is well founded and does not call for interference.

5. The undisputed facts are that the death of Sajida Bi aged about 18 year took place at the clinic of respondent and his father and that at about 5.30 p.m. the respondent informed P.W.3 Sayed Abdul Rahim that Sajida Bi had died in his clinic. The defence of the respondent is Sajida Bi had approached him with severe pain and he gave her one injection Anafortem; he told Sunil Nayak, who was accompanying her to take care but had not returned; Sajida Bi was crying with severe pain, as a result of which he gave saline injection after which she collapsed. This defence is found in answer to question 55 put under Section 313 Criminal Procedure Code to the respondent. In this statement he has also stated that he has neither issued certificate Exhibit P.W.1/C nor certificate Exhibit P.W.1/D; that the rubber stamp as well as the board which were attached by the police do not belong to him but the same belong to his father.

6. Certificates Exhibit P.W.1/C and P.W.1/D were produced through Dr. Silvano Dias Sapeco P.W.1, who had conducted postmortem on the dead body of Sajida Bi. P.W.1 has stated that he had received from the police certificate Exhibit P.W.1/C, which was stated to have been issued by the respondent. Certificate Exhibit P.W.1/D showing the cause of death was issued by the respondent. We have already pointed out that the respondent in his statement under Section 313 Cr.P.C. has denied to have issued the said certificates Exhibit P.W.1/C and P.W.1/D . However, no suggestion was put to P.W.1 Dr. Silvano Dias Sapeco that the said certificates were not issued by the respondent. P.W.7 Investigating Officer has also stated that certificate Exhibit P.W.1/D was issued by the respondent. It was no where suggested to P.W.7 that certificate Exhibit P.W.1/D was not issued by the respondent. On the contrary it was suggested to him that the death certificate issued by the accused which is at Exhibit P.W.1/B (wrongly recorded as P.W.1/B whereas it is Exhibit P.W.1/D) is a form meant for the purpose of registration of death and this suggestion was accepted by P.W.7 as can be seen from the last few lines of his cross-examination. Thus, the respondent had no where disputed during the course of trial that the said certificates Exhibit P.W.1/C and P.W.1/D were not issued by him. It is only as a matter of after-thought that the respondent has stated in his statement under Section 313 Cr.P.C. that the certificates were not issued by him. The learned Additional Sessions Judge in paragraph 17 of the judgment had in fact come to the conclusion that the accused cannot say that the signatures on the certificates P.W.1/C and P.W.1/D are not that of his . The learned Additional Sessions Judge had compared these signatures on these certificates Exhibit P.W.1/C and P.W.1/D with the signature of the respondent on charge sheet; signature of the respondent in Statement under Section 313 Cr.P.C.; wakalatnama Exhibit P.W.4 and bail bonds executed at Exhibit 5. This comparison was done under Section 73 of the Indian Evidence Act. It stands amply proved that the certificates Exhibit P.W.1/C and P.W.1/D have been issued by the respondent.

7. The cause of death in Certificate Exhibit P.W.1/D is stated to be hypo-tension (low blood pressure), jaundice and general debility. It has been categorically stated in the certificate that the death of deceased Sajida Bi was not associated with pregnancy or delivery. The postmortem conducted by Dr. Silvano Dias Sapeco P.W.1 on the dead body of Sajida Bi falsifies the said certificate Exhibit P.W.1/D issued by the respondent. It is necessary, at this stage, to refer to the evidence of Dr. Silvano dias Sapeco P.W.1. He found that the pubic hair was shaved freshly at central aspect. On internal examination of the pelvis, the uterus was enlarged and congested on external examination. It measured 14x9x3 1/2 cms. Its cervix was dilated and excoriated. On cutting there was curetted irregular deep laceration along 3x 1/2 to 3/4 cms. of cervical mucosal regions. There were another two curette areas each measuring 3 1/2 x 3/4 cms. and 3x 1/2 cms. on the walls of internal cavity whose mucosa was intensely raw and congested. The time of death was consistent with stated records i.e. 28.11.89 around 11.30 a.m.. According to P.W.1, death was due to shock during the termination of early pregnancy and it was a case of unnatural death. He has further deposed that at the time of postmortem he had not noticed either jaundice or physical debility. Hypotension is a clinical finding, which cannot be detected in autopsy. He further opined that as he found curetted irregular lacerations which show that instrument called curette was inserted in the uterus for removing the dead foetus after killing it. This process, according to him, is called as medical termination of pregnancy and only a doctor who has the desired qualification and experience in the field can perform such an operation, for termination of pregnancy. It appears that it was suggested to him that the curetted lacerations were self inflicted, but he stated that the curetted lacerations could not be said to be self inflicted as to reach up-to that spot with one's own hand would be very much painful. According to P.W.1, the shock in this case was a neurogenic shock, which arose on account of rough handling of the uterus (emphasis supplied). He also stated that for giving anesthesia or for performing M.T.P. consent of the Patient, and if she is a minor, of the guardian is essential. He did not receive any document showing consent of the deceased from the police. For M.T.P., a doctor is required to have undergone special training in obstetrics and gynaecology and obtain a certificate that he is fit (competent) to perform M.T.P. Letter Exhibit P.W.1/E which was shown to him from Registrar National Board of Electro Homoeopathic Medicine would entitle the person to practice only electro or homoeopathic matters. The drugs called abofortem and Baralgan can be used for anaesthesia for M.T.P.

8. Thus, from the evidence of Dr. Silvano Dias Sapeco P.W.1, which could not be discredited during cross examination, it stands proved that the death of deceased Sajida Bi had occurred on account of the manner in which pregnancy was terminated. The death was due to neurogenic shock which arose on account of rough handling of uterus and, according to P.W.1, the said injury found in the uterus was fatal in the ordinary course. The evidence of Dr. Silvano Dias Sapeco P.W.1 proves negligence while terminating the pregnancy, which is the direct cause of death of the deceased. The respondent in reply to question 24 put under Section 313 Cr.P.C. has admitted that for termination of pregnancy the doctor is supposed to have undergone a special training in Obstetrics and Gynaecology and obtain a certificate that he is entitled to perform M.T.P.. He also admits in reply to question 25 that according to Exhibit P.W.1/E which is a letter of Registrar, National Board of Electro Homoeopathic Medicine, a person can practice only Electro matters or homoeopathic matters. The respondent had, in addition, produced two certificate from All India (Allopathic) Training College and Hospital, Chingleput District, Madras, which is not a recognised institute. Neither these certificates nor registration with the National Board of Electro Homoeopathic Medicine, Bihar authorise the respondent to perform M.T.P.. It is also pertinent to note that the registration with the National Board of electro Homoeopathic Medicine, Bihar was done on the basis of experience certificate of 5 year given by the father of the respondent himself, who is said to be possessing H.M.D.S. qualification. No certificate as required and stated by Dr. Silvano Dias Sapeco P.W.1 regarding any special training in obstetrics and gynecology to perform M.T.P. has been produced by the respondent. On the basis of evidence on record it can be said without any hesitation that the respondent was neither authorised nor competent to perform M.T.P. The respondent was fully conscious of this and that is why he was prompt to issue certificate Exhibit P.W.1/D that the cause of death was hypotension (low blood pressure), jaundice and general debility and the death of the deceased was not associated with pregnancy or delivery. It was for the same reasons that the respondent had told P.W.3 father of the deceased when he sought postmortem that the postmortem will take time and in the meantime body would start smelling.

9. Pregnancy can be terminated in cases falling under Section 3 of The Medical Termination of Pregnancy Act, 1971 (here in after referred to as 'the said Act') by a registered medical practitioner. Section 5(2) of the Act lays down that notwithstanding anything contained in the Indian Penal Code, the termination of a pregnancy by a person who is not a registered medical practitioner shall be an offence punishable under that Code, and that Code shall, to this extent, stand modified. Besides Section 4 of the Act provides that no termination of pregnancy shall be made in accordance with the Act at any place other than a hospital established or maintained by Government, or a place for the time being approved for the purpose of this Act by Government. There is nothing to show that the clinic of the respondent where the pregnancy was terminated is an approved place for the said purpose. It is nobody's case that the pregnancy in the case of Sajida Bi was terminated on the grounds specified in Section 3 of the said Act. Besides this, Section 3(4)(b) categorically lays down that save as otherwise provided in Clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.

10. None of the above parameters are satisfied in this case. "Registered medical practitioner" as defined in Section 2(d) of the Act means:-

"(d) "registered medical practitioner" means a medical practitioner who possesses any recognised medical qualification as defined in Clause (h) of Section 2 of the Indian Medical Council Act, 1956, whose name has been entered in a State Medical Register and who has such experience or training in gynaecology and obstetrics as may be prescribed by rules made under this Act."

The respondent has not produced any registration in the State Medical Register or experience or training in gynaecology and obstetrics. P.W.5 Dr. Ramesh D. Malkarnekar has produced letter Exhibit P.W.5/A from Director of Health Services, Goa that registration No.6380 does not figure in the register maintained by Directorate of Health Services, which contains names of all medical practiotioners in Goa. It is clear that registration No. 6380 is of National Board of Electro Homoeopathic Medicine.

11. There is nothing to show that the pregnancy was terminated to save the life of the deceased or for reasons specified in Section 3(2) of the said Act. Another important factor is that no consent of the deceased or her guardian has been produced for undergoing M.T.P.. The respondent had knowingly issued false certificate Exhibit P.W.1/D and has knowingly put up a false defence that the rubber stamp and the board on the clinic was not his but that of his father. The Board M.O.4 reads as follows:-

"Dr. A.D.Silva (Jr.Son) MBBS (A) General Physician- surgeon

Exp. in:- Obstetric Gynaec & Paediatric (Ex.Asst., Doctor of Chodankar Nursing Home. Dr.A. De Silva (Senior) Specialist in Ayurvedic - Homoepathic."

The rubber stamp reads as under:-

"Dr. A. D'Silva

M.B.B.S.

Reg. No. 6380 Physician Surgeon Behind Vasco Sports Club VASCO-DA-GAMA."

Letter Exhibit P.W.1/E from The National Board of Electro Homoeopathic Medicine, Bihar states that Dr. Joaquim Antonio D'Silva S/O Augustinho D'Silva has been registered by this institution to do practice under National Board of Electro Homieopathic Medicine vide office registration No. EH(R)6380 dated 3.10.85. The said letter further states that the registration certificate has been issued on the basis of experience certificate for 5 years given by Dr. A. Silva (H.M.D.S.) Nagoa-Verna, Salcete-Goa. The certificate further states that the institution will not take any kind of responsibility if the practitioner is adopting other principles than Electro Homoeopathic Medicine, and rather the whole and sole responsibility will go to the practitioner himself. The learned advocate for the respondent has in fact produced the said original registration referred to in letter Exhibit P.W.1/E. It is crystal clear from this letter Exhibit P.w.1/E and the said registration that the number which is mentioned on the stamp in certificates P.W.1/C and P.W.1/D is same, that is 6380 of the respondent. This shows that the respondent has taken a false defence that the said rubber stamp was not his but on the contrary it was that of his father. Likewise, the Board which was removed from the clinic clearly has the name of the respondent and once again the respondent has taken a false defence that the said Board is not his but that of his father. False defence is an additional link to strengthen the prosecution case.

12. In our opinion, inspite of ample material to sustain the charge under Section 314 I.P.C., the learned Additional Sessions Judge chose to acquit the respondent, on the basis of considerations which ware not so material. It is no doubt true that the investigation of this case has been completely lax and the Investigating Officer had not attached the curette, but, in the circumstances, non-attachment of the same does not have any effect on the prosecution case. If the curette had been attached, it would have further strengthened the already proved prosecution case, but non-attachment of the same does not in any manner weaken the prosecution case. The non-examination of Sunil Nayak, who was stated to be friendly with the deceased and perhaps responsible for the pregnancy, has no material bearing in the matter. The learned Additional Sessions Judge came to the conclusion that the Board shows two medical practitioners and a confusion arose to know which one is involved in this offence. He also came to the conclusion that the Investigating Officer ought to have found out which of the two medical practitioners is involved in this offence. We may state that these conclusions of the learned Additional Sessions Judge have absolutely no basis whatsoever since the police had after investigation found that it was the respondent who was involved in the termination of pregnancy. The confusion, if any, in the mind of the learned Additional Sessions Judge, was only figment of his imagination and has absolutely no foundation. It is not understood on what basis and on what material the learned Additional Sessions Judge came to the conclusion that the fact of termination of pregnancy being carried in a place different from that of the clinic of the accused cannot be ruled out. The respondent during the course of investigation had claimed that he had a medical degree from Bihar and that is how the police had written letter to The National Board of Electro Homoeopathic Medicine, Bihar, reply of which is Exhibit P.W.1/E.

13. For the aforesaid reasons, we find that the Order of acquittal passed by the learned Additional Sessions Judge is perverse and the same cannot be sustained. The prosecution, in our opinion, had duly established the charge under Section 314 I.P.C. against the accused. We, therefore, hold him guilty for the said charge under Section 314 I.P.C..

14. The respondent shall be given an opportunity to be heard on the point of sentence before any final decision is taken in the matter.

3rd August 1999.

JUDGMENT CONTINUED :

BATTA, J. :- 15. The respondent was afforded opportunity on the point of sentence. Learned advocate for the respondent has filed an affidavit of the respondent in which it is stated that he is the sole bread winner of the family; aged parents and brothers and sisters to look after and that he enjoys very good reputation with his patients and people in the locality.

16. Learned advocate for respondent, after placing reliance on Judgment of the Apex Court in Dr. Jacob George V State of Kerala (1994) 3 S.C.C. 430, has urged before us that the facts and circumstances of the case under consideration are akin to the facts and circumstances in the case before the Apex Court and that the ends of justice would be met by imposition of some nominal sentence and reasonable fine, which may extend to Rs. 50,000/-. It is also urged by him that there is no mens rea on the part of the respondent in the commission of the crime in question and, at the most, what can be said is that he was negligent in the performance of his duties.

17. On the other hand, learned Public Prosecutor Shri Lawande has drawn our attention to Explanation to Section 314 Indian Penal Code which states that it is not essential for the offence under Section 314 I.P.C. that the offender should know that the act is likely to cause death. In addition, it has been pointed out, that the facts and circumstances in the case before the Apex Court were different and that the crime in question in the said case was under the first part of Section 314 I.P.C. where the punishment can extend up to 10 years and fine but the instant case under consideration falls under part two of Section 314 I.P.C. since the miscarriage was carried out without the consent of the deceased and as such the punishment which would be attracted in this case would be life imprisonment or imprisonment which may extend to 10 years and fine.

18. We have given anxious thought on the question of sentence to be imposed on the respondent. What should we sentence in a case would largely depend upon the facts and circumstances of the case. The Apex Court was dealing with a case where the conviction was under part one of Section 314 I.P.C. wherein the miscarriage was carried out with the consent of the deceased married lady, who had been separated. In the case under consideration there is nothing on record to show that the miscarriage in question was carried out with the consent of the deceased. When the relations of the deceased had requested for a postmortem, the respondent discouraged them from adopting the said course on the ground that the postmortem will take three days and the dead body would start smelling. The respondent in the case under consideration had knowingly issued false certificate Exhibit P.W.1/D giving the cause of death as low blood pressure and jaundice and totally ruled out the cause death due to termination of pregnancy. Besides this, the respondent in this case had put up a false defence and had gone to the extent of denying the signatures on the certificate issued by him regarding the cause of death of the deceased and had also gone to the extent of stating that the rubber stamp on the letter and the board which was displayed outside the hospital were not that of his but were that of his father. Moreover, the respondent was neither authorised nor competent to perform the termination of the pregnancy nor his clinic is approved place for the said purpose. Taking into consideration all the above mentioned factors and the affidavit filed by the respondent, we are of the opinion that sentence of 3 years rigorous imprisonment and fine of Rs. 50,000/- be imposed on the respondent under Section 314 part two I.P.C.. In default of payment of fine, the respondent shall undergo simple imprisonment for 6 months. In case the fine of Rs. 50,000/- is recovered, the same shall revert as compensation to the father of the deceased. The Appeal is allowed in aforesaid terms. The respondent be taken in custody to serve the sentence imposed on him.

19. At this stage learned advocate for the respondent has filed an application that the respondent be given time to surrender before the Sessions Judge, Margao and he prays for 2 weeks' time for the said purpose. Two weeks' time to surrender before the Sessions Judge, Margao is granted. In case the respondent does not surrender within the said period, the bail bond of Rs. 10,000/- with one surety in the like amount furnished by him as directed by this Court on 27 th January 1998 shall stand forfeited and the Sessions Judge shall take coercive measures for the arrest of the respondent and take steps in connection with the forfeiture of the bail bond. In case the respondent surrenders within a period of 2 weeks, the said bail bonds shall stand cancelled. Sessions Judge, Margao shall report after a period of 2 weeks as to the surrender of the respondent as directed.

Appeal allowed