High Court of Punjab and HaryanaCRM-A/2110/2017dismissed

State Of Haryana v. Dr. Sanjay Gupta And Another

2024-04-234 pages

CRMA2110MA2017 (O&M) Date of decision: 23.04.2024 State of Haryana ....Applicant

Versus

Dr. Sanjay Gupta and another

...Respondents

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%&'&() Ms. Geeta Sharma, DAG Haryana Mr. Ranvijay Singh, Advocate for respondent no. 1 $

# + The present application is filed under Section 5 of the Limitation Act, 1963, seeking condonation of delay of 191 days in filing of the present appeal. For the reasons mentioned in the application, the same is allowed and the delay of 191 days is condoned.

The present application is preferred under Section 378(3) of the Cr.P.C. against the judgment of acquittal dated 28.11.2016 passed by learned Additional Sessions JudgecumJudge, Special Court, Kaithal, in the case stemming from FIR, bearing No. 10, dated 18.01.2014 under Sections 312, 315, 420, 120B of IPC and Sections 3, 4 and 5 of Medical Termination of Pregnancy Act, 1971 registered at Police Station Civil Lines, Kaithal.

Briefly, the facts are that one Smt. Kiran (PW3) met Dr. Aditya Swarup Gupta (PW1), the then Civil Surgeon, Kaithal and informed him that Chhoto Dai, respondent No.2accused took her to Dr. Sanjay Gupta, respondent No.1accused, who charged Rs. 4000/ to terminate her pregnancy and was running a clinic not registered under the Medical Termination of Pregnancy Act, 1971. On finding this information to be reliable, a raiding team headed by Dr. Aditya, reached the disclosed place i.e. Amargarh Gamri, Kaithal, where they found a hospital running under the name of

. After 23 knocks a lady, namely, Kiran came out of the room. On checking the dustbin of the room, empty capsules and vials of injections were found. Respondent no.1 accused introduced himself as the owner of the clinic. On conducting a search of the entire premises, various instruments used for the termination of pregnancy were also recovered. Subsequently, all incriminating materialused for carrying out illegal abortions were taken into possession vide memo Ex. PC on which respondent No.1accused appended his signature. Respondent No.2 accused affixed her thumb impression. Thereafter, the entire raiding team went to SHO, where PW1 moved an application Ex. PJ to SHO intimating him about the facts of the case and requesting for the initiation of appropriate criminal proceedings against the respondentsaccused. On the basis of the said complaint, a formal case was registered.

Having heard the learned counsel for the parties and after perusing the record of the case with their able assistance, it transpires that no pregnancy test of the decoy customer Smt. Kiran (PW3) was conducted to ascertain as to whether she was pregnant on the day of the alleged occurrence. Simply relying on the oral statement of Smt. Kiran that she was pregnant at the time does not

constitute proof. In the absence of this, there is nothing on record to to show that the decoy customer, who eventually did not support the case of the prosecution while appearing in the witness box as PW3, was pregnant on the day she visited Dr. Aditya Swarup Gupta. Moreover, when the raid was conducted, the decoy customer was fully clothed and had opened the door of one of the rooms of the clinic. As per the prosecution, the respondent no.1 accused had already administered an injection to Smt. Kiran for aborting the foetus, however, surprisingly no blood sample of the decoy customer was taken in order to prove this contention. Even the salt of the injection which was administered was not sent to the FSL, Madhuban, Karnal, Haryana. Hence, in the absence of any evidence led by the raiding party to substantiate the claim that the decoy customer was pregnant at the time she was sent to get her pregnancy terminated, the entire case of the prosecution crumbles. 4.

Furthermore, it was the case of the prosecution that from the recovery of the medicines and other instruments from the premises of the respondent no.1accused, which are used in the termination of pregnancy, a presumption can be drawn that the respondent no.1accused kept all the medicines and other instruments for the purpose of conducting illegal abortions. In the absence of any cogent proof, mere assumption cannot be a sufficient reason to convict the respondentsaccused. Lastly, the clinic was located in a densely populated area, however, no efforts were made the prosecution to join any independent witnesses.

The power of the Appellate Court to unsettle the order of acquittal on the basis of reappreciation of the evidence is subject to the settled law that where two views are possible and out of the two, one points towards the

innocence of the accused, the view which favours the accused should prevail over the other pointing towards his guilt. Furthermore, the trial Court has the additional advantage of closely observing the prosecution witnesses and their demeanour, while deciding about the reliability of the version of prosecution witnesses. ($&& ## $,(-.%.

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1'# (45) .(- /)0&%' passed CRMA No.3 of 2022 decided on 06.07.2023 has held that presumption of innocence further gets entrenched on the acquittal of accused by the trial Court. 6.

In view of the facts and circumstances of the case, this Court finds that learned State counsel has failed to point out any perversity or illegality in findings recorded by the learned trial Court which warrants interference by this Court. As such, there is no merit in the present application and hence, the leave to appeal is denied.

Pending miscellaneous application(s), if any, shall also stand disposed of.

## Whether speaking/reasoned :

Yes/No Whether reportable :

Yes/No