It is a settled law that a case cannot be decided on mere Criminal presumptions unless the Statute states so. If there is legal presumption, the same can be drawn but the counsel for the petitioner is fair enough to concede that under the Statute, there is no legal presumption that foetus was of female and was aborted. Moreover, according to the case of the prosecution, abortion was done by respondent No.4 but no notice of motion has been issued by this Court qua respondent No.4 vide order dated 26.3.2008. It is not out of place to mention here that the complainant while reporting the matter to the authorities under the Act has not stated that it was a female foetus. The case of the prosecution, from the very beginning, was that Dr. Kamlesh Jindal has conducted Ultra- sound (Sonography). Admittedly, she has reported to the authorities and it has been mentioned in her report that she has not disclosed the factum of sex or foetus to Ranjit Kaur or any other family member. There is no legal evidence on the file to prove the fact that foetus was that of female.
the trial Court held that the alleged inquiry, Exhibit P4 is ambiguous, unbelievable and does not provide any help to the case of the complainant. The trial Court has rightly held that mere fact that Ultra-sonography was conducted by Dr. Kamlesh Jinda, ipso-facto, does not establish that she had detected and disclosed the sex of the foetus
Through the present application, the appellant/applicant seeks grant of leave to appeal against the judgment passed by the Additional Sessions Judge, Bathinda dated 12.4.2007 whereby the accused have been acquitted of the charges under Sections 120-B, Criminal Misc. No.337-MA of 2007.
-2-
312, 315, 120-B IPC and Section 23 of the Pre-conception and Pre- natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 ( in short the Act).
The complainant has alleged in his complaint that Dr. Kamlesh Jindal had been running her Clinical/Nursing Home at Rampura where she was also providing Ultrasound (Pre-natal Diagnostic) facilities. On 30.8.2003, Ranjit Kaur wife of Kulwant Singh, accused, got herself subjected to Pre-natal Diagnostic test from Dr. Kamlesh Jindal, accused No.3. Dr. Kamlesh Jindal has recorded the relevant entries in form F and conducted Ultra-sound test of Ranjit Kaur,accused No.1. Thereafter, Ranjit Kaur has got the pregnancy terminated and this fact was established from the report of S.D.M, Rampura Phul, because at the time of inquiry PW-4, Ranjit Kaur was not pregnant. After Ultra-sound test, accused No.3, Dr. Kamlesh Jindal has described the result of PNDT process as 14 weeks normal pregnancy which was revealed during inquiry conducted by the S.D.M and was found to be a case of female foeticide and termination of pregnancy. However, sex of foetus was not specified in form-F of Dr. Kamlesh Jindal. According to the complainant, pregnancy was normal and neither any complication nor abnormalities have developed in the Criminal Misc. No.337-MA of 2007.
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abdomen of accused Ranjit Kaur but the pregnancy has been terminated by Dr. Lakshmi, accused No.4. It was also alleged in the complaint that it has come to the knowledge of the complainant that menace of female foeticide was flourishing due to the nexus of couples who have no male child or who were not interested of having female child and in connivance with the doctors/ Ultra-Sonologists//RMP and other agents. In this case, the termination of pregnancy of Ranjit Kaur is governed by common psyche of bearing a male child and, therefore, accused Nos.1 and 2 got the female foetus aborted after report from accused No.3 regarding the determination of sex of the foetus.
On the receipt of complaint,the learned Magistrate treated it as a warrant case. He initiated preliminary inquiry wherein complainant Sadhu Ram Kusla appeared as CW-1, Avniash Kaur as CW-2 and Ravi Kumar, CW-3 a Clerk from the office of SDM.
The learned Magistrate vide order dated 26.2.2005 has observed that there were sufficient grounds to proceed against all the accused for the commission of offences punishable under Sections 120-B, 312, 315 IPC and Section 23 of the Act. Criminal Misc. No.337-MA of 2007.
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Charge was accordingly framed against the accused to which they pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined PW-1 Mohinder Kaur, PW-2 Taro Bai, PW-3 Sadhu Ram Kusla and PW-4 Avinash Kaur.
After the close of prosecution evidence, all the accused were examined under Section 313 Cr.P.C in order to afford them an opportunity to explain the circumstances appearing against them in the prosecution evidence. All the incriminating circumstances were put to them. They have denied the same. Accused Dr. Kamlesh Jindal has taken the following stand:-
"I am innocent and case has been planted upon us falsely. I have not committed any illegality while conducting the Ultrasonography of Ranjit Kaur." Accused Dr. Lakshmi Garg has taken plea the following plea:-
"I am innocent and case has been planted upon us falsely. Ranjit Kaur never came to me nor PW Avinash Kaur had ever visited my clinic. PW Avinash Kaur was not known to me. She had conducted no inquiry and she Criminal Misc. No.337-MA of 2007.
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had sent wrong report on imagination." Accused Ranjit Kaur has taken the following stand:- "I am innocent and case has been planted upon me and my husband falsely. I was pregnant and I had gone to the clinic of Dr.Kamlesh Jindal along with my mother- in-law on 30.8.03 as I had continuous bleeding and pain for two days. Dr. Kamlesh Jindal after examining me advised for Ultra-sound and on giving consent by me, Ultra-sound scan was conducted by Dr. Kamlesh Jindal which was necessary to know the condition of foetus. Dr. Kamlesh Jindal told us that the sex of foetus will not be disclosed to which we agreed and got signed from me declaration regarding above facts. Dr. Kamlesh Jindal after examining me clinically told that there is risk of threatened abortion and also told to get myself admitted to which I and my mother-in-law refused as we were not accompanying any male person at that time. However, doctor did not disclose about the sex of foetus to us. Dr. Kamlesh Jindal also issued prescription slip to me. We returned to our village in a bus. During the night intervening 30-31 August, 2003 after mid Criminal Misc. No.337-MA of 2007.
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night, I had lot of pain in lower abdomen and my mother-in-law also woke up and she called old lady from neighbouring house i.e. Jasbir Kaur. My husband went from house to arrange some vehicle for taking me to some hospital but by that time there was heavy bleeding and all contents of pregnancy spontaneously came out of its own there and then. Avinash Kaur never visited our village nor conducted any inquiry in our village. I and my husband have been falsely named as accused".
Accused Kulwant Singh also took the plea that he and his wife Ranjit Kaur were innocent and he had adopted the plea of his co-accused Ranjit Kaur.
In their defence, the accused examined DW-1 Tirath Ram, a Steno of Civil Surgeon, Bathinda, DW-2 Dr. Baldev Raj and DW-3 Basant Kaur.
After the conclusion of trial, vide impugned judgment, trial Court acquitted the accused.
At the time of issuing notice of motion, this Court observed as under:-
"This is application under Section 378(4) of the Code of Criminal Misc. No.337-MA of 2007.
-7-
Criminal Procedure for leave to appeal against judgment of acquittal dated 12.04.2007 of learned Additional Sessions Judge, Bathinda, whereby in criminal complaint instituted by petitioner Sadhu Ram Kusla, Assistant Project Officer and Member of P.N.D.T.Cell, Bathinda, respondents No.1 to 4 have been acquitted of the charge under Sections 120-B, 312 and 315 of the Indian Penal Code and Section 23 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (in short 'the Act').
Learned counsel for the petitioner pointed out that vide Form-F (Annexure P-1), respondent No.3 conducted sonography test of respondent No.1, who had pregnancy of 14 weeks. The test was conducted on 30.08.2003 to determine 'Foetus Well Being' as mentioned in Annexure P-1 and the result was found to be normal. However, on the same night between 30/31.08.2003, there was alleged miscarriage of the pregnancy of respondent No.1. It is contended that in fact, sonography test was conducted to determine sex of Criminal Misc. No.337-MA of 2007.
-8-
the foetus and thereupon, the pregnancy was got aborted on finding the foetus to be female. Respondent No.2 is husband of respondent No.1. It is contended that if the foetus was found normal on sonography test conducted on 30.08.2003, as contained in Annexure P-1, there could not be miscarriage on the same night by alleged excessive bleeding as contended by the defence. However, there is practically no evidence against respondent No.4.
In view of the aforesaid, the instant petition as against respondent No.4 is dismissed. Notice of motion to respondents No.1 to 3 only for 07.07.2008."
The counsel for the petitioner, during the course of arguments, has again raised similar contentions. His main stress is on the fact that since foetus of Ranjit Kaur was normal on 30.8.2003 on the same night, how the foetus was aborted. Presumption be drawn that the foetus was of a female child and had been aborted.
I have considered the said submission. It is a settled law that a case cannot be decided on mere Criminal Misc. No.337-MA of 2007.
-9-
presumptions unless the Statute states so. If there is legal presumption, the same can be drawn but the counsel for the petitioner is fair enough to concede that under the Statute, there is no legal presumption that foetus was of female and was aborted. Moreover, according to the case of the prosecution, abortion was done by respondent No.4 but no notice of motion has been issued by this Court qua respondent No.4 vide order dated 26.3.2008. It is not out of place to mention here that the complainant while reporting the matter to the authorities under the Act has not stated that it was a female foetus. The case of the prosecution, from the very beginning, was that Dr. Kamlesh Jindal has conducted Ultra- sound (Sonography). Admittedly, she has reported to the authorities and it has been mentioned in her report that she has not disclosed the factum of sex or foetus to Ranjit Kaur or any other family member. There is no legal evidence on the file to prove the fact that foetus was that of female. In para No.40 of the judgment, the trial Court has discussed the report of PW-4 Avinash Kaur. She found the following deficiencies:-
"a) She did not mention in Ex.P4, the date, time and place the inquiry.
b) She did not record the statement of any person. Criminal Misc. No.337-MA of 2007.
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c)She did not record the statement of her subordinates i.e. Anganwari workers.
d)It is not mentioned in Ex.P4 that on which date, she visited village Mehraj and at which time or on which date.
e) She did not try to approach the pregnant woman Ranjit Kaur her family members or to Dr. Kamlesh Jindal or Dr.Lakshmi Garg
f). Her inquiry report Ex.P4 is silent with regard to sex of foetus, the date of abortion."
So, on the basis of above observations, the trial Court held that the alleged inquiry, Exhibit P4 is ambiguous, unbelievable and does not provide any help to the case of the complainant. The trial Court has rightly held that mere fact that Ultra-sonography was conducted by Dr. Kamlesh Jinda, ipso-facto, does not establish that she had detected and disclosed the sex of the foetus. The trial Court has dealt with each and every aspect of the case elaborately.
In the light of above discussion, I do not find any fault in the judgment of the learned trial Court. The petitioner has failed to make out a case for grant of leave to appeal. Consequently, this Criminal Misc. No.337-MA of 2007.
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application for grant of leave to appeal and the appeal stand dismissed.
A copy of this judgment be sent to the trial Court. March 23,2009. (K. C. Puri ) Jaggi Judge
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the trial Court held that the alleged inquiry, Exhibit P4 is ambiguous, unbelievable and does not provide any help to the case of the complainant. The trial Court has rightly held that mere fact that Ultra-sonography was conducted by Dr. Kamlesh Jinda, ipso-facto, does not establish that she had detected and disclosed the sex of the foetus
Punjab-Haryana High Court
Sadhu Ram Kusla vs Ranjit Kaur And Others on 23 March, 2009
Criminal Misc. No.337-MA of 2007.Through the present application, the appellant/applicant seeks grant of leave to appeal against the judgment passed by the Additional Sessions Judge, Bathinda dated 12.4.2007 whereby the accused have been acquitted of the charges under Sections 120-B, Criminal Misc. No.337-MA of 2007.
-2-
312, 315, 120-B IPC and Section 23 of the Pre-conception and Pre- natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 ( in short the Act).
The complainant has alleged in his complaint that Dr. Kamlesh Jindal had been running her Clinical/Nursing Home at Rampura where she was also providing Ultrasound (Pre-natal Diagnostic) facilities. On 30.8.2003, Ranjit Kaur wife of Kulwant Singh, accused, got herself subjected to Pre-natal Diagnostic test from Dr. Kamlesh Jindal, accused No.3. Dr. Kamlesh Jindal has recorded the relevant entries in form F and conducted Ultra-sound test of Ranjit Kaur,accused No.1. Thereafter, Ranjit Kaur has got the pregnancy terminated and this fact was established from the report of S.D.M, Rampura Phul, because at the time of inquiry PW-4, Ranjit Kaur was not pregnant. After Ultra-sound test, accused No.3, Dr. Kamlesh Jindal has described the result of PNDT process as 14 weeks normal pregnancy which was revealed during inquiry conducted by the S.D.M and was found to be a case of female foeticide and termination of pregnancy. However, sex of foetus was not specified in form-F of Dr. Kamlesh Jindal. According to the complainant, pregnancy was normal and neither any complication nor abnormalities have developed in the Criminal Misc. No.337-MA of 2007.
-3-
abdomen of accused Ranjit Kaur but the pregnancy has been terminated by Dr. Lakshmi, accused No.4. It was also alleged in the complaint that it has come to the knowledge of the complainant that menace of female foeticide was flourishing due to the nexus of couples who have no male child or who were not interested of having female child and in connivance with the doctors/ Ultra-Sonologists//RMP and other agents. In this case, the termination of pregnancy of Ranjit Kaur is governed by common psyche of bearing a male child and, therefore, accused Nos.1 and 2 got the female foetus aborted after report from accused No.3 regarding the determination of sex of the foetus.
On the receipt of complaint,the learned Magistrate treated it as a warrant case. He initiated preliminary inquiry wherein complainant Sadhu Ram Kusla appeared as CW-1, Avniash Kaur as CW-2 and Ravi Kumar, CW-3 a Clerk from the office of SDM.
The learned Magistrate vide order dated 26.2.2005 has observed that there were sufficient grounds to proceed against all the accused for the commission of offences punishable under Sections 120-B, 312, 315 IPC and Section 23 of the Act. Criminal Misc. No.337-MA of 2007.
-4-
Charge was accordingly framed against the accused to which they pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined PW-1 Mohinder Kaur, PW-2 Taro Bai, PW-3 Sadhu Ram Kusla and PW-4 Avinash Kaur.
After the close of prosecution evidence, all the accused were examined under Section 313 Cr.P.C in order to afford them an opportunity to explain the circumstances appearing against them in the prosecution evidence. All the incriminating circumstances were put to them. They have denied the same. Accused Dr. Kamlesh Jindal has taken the following stand:-
"I am innocent and case has been planted upon us falsely. I have not committed any illegality while conducting the Ultrasonography of Ranjit Kaur." Accused Dr. Lakshmi Garg has taken plea the following plea:-
"I am innocent and case has been planted upon us falsely. Ranjit Kaur never came to me nor PW Avinash Kaur had ever visited my clinic. PW Avinash Kaur was not known to me. She had conducted no inquiry and she Criminal Misc. No.337-MA of 2007.
-5-
had sent wrong report on imagination." Accused Ranjit Kaur has taken the following stand:- "I am innocent and case has been planted upon me and my husband falsely. I was pregnant and I had gone to the clinic of Dr.Kamlesh Jindal along with my mother- in-law on 30.8.03 as I had continuous bleeding and pain for two days. Dr. Kamlesh Jindal after examining me advised for Ultra-sound and on giving consent by me, Ultra-sound scan was conducted by Dr. Kamlesh Jindal which was necessary to know the condition of foetus. Dr. Kamlesh Jindal told us that the sex of foetus will not be disclosed to which we agreed and got signed from me declaration regarding above facts. Dr. Kamlesh Jindal after examining me clinically told that there is risk of threatened abortion and also told to get myself admitted to which I and my mother-in-law refused as we were not accompanying any male person at that time. However, doctor did not disclose about the sex of foetus to us. Dr. Kamlesh Jindal also issued prescription slip to me. We returned to our village in a bus. During the night intervening 30-31 August, 2003 after mid Criminal Misc. No.337-MA of 2007.
-6-
night, I had lot of pain in lower abdomen and my mother-in-law also woke up and she called old lady from neighbouring house i.e. Jasbir Kaur. My husband went from house to arrange some vehicle for taking me to some hospital but by that time there was heavy bleeding and all contents of pregnancy spontaneously came out of its own there and then. Avinash Kaur never visited our village nor conducted any inquiry in our village. I and my husband have been falsely named as accused".
Accused Kulwant Singh also took the plea that he and his wife Ranjit Kaur were innocent and he had adopted the plea of his co-accused Ranjit Kaur.
In their defence, the accused examined DW-1 Tirath Ram, a Steno of Civil Surgeon, Bathinda, DW-2 Dr. Baldev Raj and DW-3 Basant Kaur.
After the conclusion of trial, vide impugned judgment, trial Court acquitted the accused.
At the time of issuing notice of motion, this Court observed as under:-
"This is application under Section 378(4) of the Code of Criminal Misc. No.337-MA of 2007.
-7-
Criminal Procedure for leave to appeal against judgment of acquittal dated 12.04.2007 of learned Additional Sessions Judge, Bathinda, whereby in criminal complaint instituted by petitioner Sadhu Ram Kusla, Assistant Project Officer and Member of P.N.D.T.Cell, Bathinda, respondents No.1 to 4 have been acquitted of the charge under Sections 120-B, 312 and 315 of the Indian Penal Code and Section 23 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (in short 'the Act').
Learned counsel for the petitioner pointed out that vide Form-F (Annexure P-1), respondent No.3 conducted sonography test of respondent No.1, who had pregnancy of 14 weeks. The test was conducted on 30.08.2003 to determine 'Foetus Well Being' as mentioned in Annexure P-1 and the result was found to be normal. However, on the same night between 30/31.08.2003, there was alleged miscarriage of the pregnancy of respondent No.1. It is contended that in fact, sonography test was conducted to determine sex of Criminal Misc. No.337-MA of 2007.
-8-
the foetus and thereupon, the pregnancy was got aborted on finding the foetus to be female. Respondent No.2 is husband of respondent No.1. It is contended that if the foetus was found normal on sonography test conducted on 30.08.2003, as contained in Annexure P-1, there could not be miscarriage on the same night by alleged excessive bleeding as contended by the defence. However, there is practically no evidence against respondent No.4.
In view of the aforesaid, the instant petition as against respondent No.4 is dismissed. Notice of motion to respondents No.1 to 3 only for 07.07.2008."
The counsel for the petitioner, during the course of arguments, has again raised similar contentions. His main stress is on the fact that since foetus of Ranjit Kaur was normal on 30.8.2003 on the same night, how the foetus was aborted. Presumption be drawn that the foetus was of a female child and had been aborted.
I have considered the said submission. It is a settled law that a case cannot be decided on mere Criminal Misc. No.337-MA of 2007.
-9-
presumptions unless the Statute states so. If there is legal presumption, the same can be drawn but the counsel for the petitioner is fair enough to concede that under the Statute, there is no legal presumption that foetus was of female and was aborted. Moreover, according to the case of the prosecution, abortion was done by respondent No.4 but no notice of motion has been issued by this Court qua respondent No.4 vide order dated 26.3.2008. It is not out of place to mention here that the complainant while reporting the matter to the authorities under the Act has not stated that it was a female foetus. The case of the prosecution, from the very beginning, was that Dr. Kamlesh Jindal has conducted Ultra- sound (Sonography). Admittedly, she has reported to the authorities and it has been mentioned in her report that she has not disclosed the factum of sex or foetus to Ranjit Kaur or any other family member. There is no legal evidence on the file to prove the fact that foetus was that of female. In para No.40 of the judgment, the trial Court has discussed the report of PW-4 Avinash Kaur. She found the following deficiencies:-
"a) She did not mention in Ex.P4, the date, time and place the inquiry.
b) She did not record the statement of any person. Criminal Misc. No.337-MA of 2007.
-10-
c)She did not record the statement of her subordinates i.e. Anganwari workers.
d)It is not mentioned in Ex.P4 that on which date, she visited village Mehraj and at which time or on which date.
e) She did not try to approach the pregnant woman Ranjit Kaur her family members or to Dr. Kamlesh Jindal or Dr.Lakshmi Garg
f). Her inquiry report Ex.P4 is silent with regard to sex of foetus, the date of abortion."
So, on the basis of above observations, the trial Court held that the alleged inquiry, Exhibit P4 is ambiguous, unbelievable and does not provide any help to the case of the complainant. The trial Court has rightly held that mere fact that Ultra-sonography was conducted by Dr. Kamlesh Jinda, ipso-facto, does not establish that she had detected and disclosed the sex of the foetus. The trial Court has dealt with each and every aspect of the case elaborately.
In the light of above discussion, I do not find any fault in the judgment of the learned trial Court. The petitioner has failed to make out a case for grant of leave to appeal. Consequently, this Criminal Misc. No.337-MA of 2007.
-11-
application for grant of leave to appeal and the appeal stand dismissed.
A copy of this judgment be sent to the trial Court. March 23,2009. (K. C. Puri ) Jaggi Judge
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