Smt. Surekha vs The State of Karnataka

Anand Byrareddy, J.—Heard the learned Counsel for the appellant and the learned Additional State Public Prosecutor. The appellant was the accused before the trial Court and had been convicted for offences punishable under Sections 313 and 314 of the Indian Penal Code, 1860 (hereinafter referred to as ''I.P.C.'', for brevity) and sentenced to undergo Simple Imprisonment for two years and to pay a fine of Rs. 3,000/- for the offence punishable u/s 313 of the IPC and sentenced to undergo Simple imprisonment for a period of five years and to pay a fine of Rs. 5,000/- for the offence punishable u/s 314 of the IPC. It is that, which is challenged in the present appeal.

The facts leading up to this appeal are as follows:

The Jamakhandi Town Police had registered a case against the appellant, on 11.11.2006 at about 8.15 pm, in Crime No. 170/2006, on the basis of a complaint lodged by one Shyam, Son of Shivappa Telagadi of Jamakhandi, alleging that, about 12 days prior to the complaint., his sister Bharathi, who was said to be a devadasi, had complained of stomach pain and she was admitted to the hospital of the present appellant, with a complaint that she was pregnant and was bleeding heavily. The appellant, on examination of Bharati, had informed the complainant and his mother that, she would have to undergo termination of pregnancy and that the pregnancy was of about 2 1/2 months. It is further alleged that, without obtaining their consent, she had proceeded to induce abortion on the victim. It was as a result of a partial abortion having carried out, the sister of the complainant, who was bleeding heavily already, continued to bleed and though she was under treatment of the accused, at the home of the complainant for four days thereafter, there was no improvement. Since the bleeding did not stop, at the instance of the appellant, the victim was admitted to the private hospital of one Dr. G. R. Tamagond, namely, Basaveshwar Private Hospital at Jamakhandi. She underwent treatment at that hospital for several days i.e. from 06.11.2006 to 09.11.2006 and she was discharged from the said hospital, as her condition did not improve. She was then admitted to Mission Hospital, Miraj, but she had succumbed at 11.00 am on 11.11.2006 at that hospital.

It is on the basis of the said complaint, that the police had registered a case and the Magistrate having taken cognizance of the same, the appellant was charge sheeted and later committed the case to the Court of District and Sessions Judge, Bagalkot. The charges having been framed by the Sessions Court for offences punishable under Sections 313 and 314 of the IPC, and the accused having pleaded not guilty and having claimed to be tried, the prosecution had examined 21 witnesses and produced Exhibits P1 to P34 and marked 12 material objects.

After recording the statement of the accused u/s 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to ''Cr.P.C.'', for brevity) and on hearing the accused as well as the prosecution, the Court below had framed the following points for consideration:

i. Whether the prosecution proves that the accused on 30.10.2006 in her hospital or house bearing T.M.C. No. 4657 situate in Gawali Galli Jamakhandi town voluntarily caused miscarriage of Bharati Talagade without her consent and not being caused in good faith for the purpose of saving the life of deceased and thereby caused the death of deceased on 11.11.2006?

ii. What order

The Court below had answered the above in the affirmative and convicted the appellant as aforesaid, which is under challenge in the present appeal.

The learned Counsel for the appellant Shri. Ashok R. Kalyanashetty, has taken this Court through the record in extenso and has sought to demonstrate that, having regard to the sequence of events, where it is stated that, the alleged victim, who was pregnant and was bleeding for more than a week before she was brought to the appellant for examination, was allegedly forced to undergo termination of pregnancy, as stated by PW1 and PW6, namely the brother and mother of the victim. According to their testimony, the appellant had caused an incision in the abdominal region of the victim, in inducing such termination of pregnancy. This is not forthcoming, in that, there were no such incisive wounds found on the abdomen of the deceased. Therefore, the very basic allegation that the appellant had performed any such surgical abortion, which itself is illogical, as no such abortion can be performed by causing incision on the abdomen and the very allegation was without any basis. In any event, there was no evidence of any such incision having been caused on the abdominal region of the victim.

Further, admittedly the victim was heavily bleeding and was pregnant, when she was examined by the appellant. Even according to the said witnesses, the examination and so called abortion performed by the appellant lasted only 10 minutes, which again is not acceptable, as no such procedure could be conducted, even if attempted, within 10 minutes. Thereafter, the bleeding having continued, she was under treatment in the home of the complainant for four days. It was in view of the concern expressed by the appellant, that she would be required to be admitted in a regular hospital, that she was admitted in the private hospital of Dr. Tamagond. Further, the treatment that she had received at the hospital of Dr. Tamagond would indicate that, she had undergone several procedures. Though there is denial by Dr. Tamagond as well as the medical practitioner, who in fact had offered treatment to the victim namely, Dr. Prema Patil, and their categorical assertions that, no procedures were carried out on the deceased Bharati, the record would indicate otherwise. There is mention of Dilatation and Curettage (hereinafter referred to as ''D and C, for brevity) having been carried out on the said patient, as per the record dated 06.11.2006. Since there was an attempt of tampering with the date, the same is also a suspicious entry. Though the record would indicate that D and C had been performed on the patient, that was struck off as an after thought, to indicate that, it was recommended. In any event, the finding of the said doctors was that, the record indicating that there was complaint of an incomplete abortion having been carried out and on which basis, she was admitted to the private hospital of Dr. Tamagond, was not reflected in the subsequent record. There was no indication of any partial abortion having been carried out, as there was no medical record indicating that, the uterus of the woman was found carrying any foetus or portion of any foetus. There was also no indication of any injuries on that portion of the body of the patient, which would normally carry a foetus. In the absence of it, even if there was an attempt of an abortion performed by the appellant, it ought to have resulted in some injuries, which have later infected the body of the patient, resulting in septicemia and her ultimate death.

On the other hand, though the victim was admitted in Dr. Tamagond Hospital and she had undergone procedures in that hospital, as the record would reveal repeated assertions that, no such procedures were carried out and she was advised to be shifted to a better hospital and hence she had moved to Wanless Hospital on 10.11.2006 and there she had undergone major surgeries, it was discovered that, her internal organs, such as, the abdomen, intestines etc., were severely infected and there was a large quantity of pus that was removed from her body. It was also found that, she had tested positive for HIV. Apart from that, she was totally non-responsive to the treatment and was semi-conscious most of the time. She was also suffering from bronchitis, which would indicate that, she was infected with multiple illnesses and infections. It is in that condition that, she ultimately died, when she was put on ventilator on 11.11.2006.

Therefore, the sequence of events from 06.11.2006 to 11.11.2006 would indicate that, the woman had undergone treatment in two hospitals under several doctors and she had undergone several procedures before she had ultimately died. Most significantly, if there was any mishap committed by the present appellant, who is basically a midwife, but referred to as a doctor not on her insistence, but by people who had opted for her services, had not caused any injury to that portion of the body, which necessarily should have been infected, in order to bring home the charge against the appellant, that it was the injury caused by her, which had ultimately resulted in the death of the woman. On the other hand, the death is referable to the several infections of other parts of her body, which would not be involved in any abortion being induced on the woman.

Therefore, the prosecution was hard put to explain the role played by this appellant, merely on the allegation of PW1 and PW6, when there was no direct medical evidence to indicate that, it was an unprofessional attempt at abortion, that had caused injuries to that portions of the body of the woman, which had been infected and ultimately the woman not having recovered from such infection. It is in this vein that the learned Counsel for the appellant would seek acquittal of the appellant.

On the other hand, the learned Additional State Public Prosecutor would seek to justify the findings of the Court below and would draw attention to the evidence of PW15 to the effect that, it was certainly on account of an incomplete abortion carried out on the victim, that further complications had developed and that, she had ultimately succumbed. He would also bring to attention, the opinion expressed by the pathologist - PW9, who had performed the post-mortem examination to the effect that, it was possible that, death could occur on account of an un-professional abortion carried out and as a result of infection on account of the injuries caused in the process and had also expressed that, pieces of human flesh were present in the uterus. Further that, there were incriminating material, such as stethoscope and other medical implements, that were recovered from the so called hospital premises of the appellant, apart from 72 documents, namely, case papers, where similar procedures had been carried out on other female patients, which clearly indicated that, the appellant was indulging in unauthorized termination of pregnancies. The present case on hand is one, which had resulted in the death of the victim. Therefore, the learned Additional State Public Prosecutor would seek to justify the judgment of the Court below.

By way of reply, the learned Counsel for the appellant would point out that, the opinion expressed by the witness PW9 would not be conclusive, that there was partial abortion carried out on the deceased, when there were other medical evidence to indicate that, the uterus was clear and there were absolutely no injuries found on the uterus of the deceased. This is contrary to the evidence tendered by PW9, who was only expressing an opinion, which may not be tenable. That by itself, would not be conclusive, that the petitioner was instrumental in causing any kind of damage to the internal organs of the deceased, which had resulted in her death. On the other hand, as already pointed out, the woman was already bleeding, when she was examined by the accused and whether there was any damage caused to the other internal organs of the body was not to the knowledge of the appellant and could not be attributed to her, as she was not competent to deal with infections or any complications in other parts of the body. It had been demonstrated with; reference to the medical records, that the actual infection and damage had occurred to the portions of the body of the deceased, which had no connection with child birth or could be attributed to the unprofessional abortion having been carried out. Insofar as the incriminating material said to have been recovered from the premises, used by the appellant is concerned, a stethoscope can hardly be an instrument, which is used for performing an abortion. There is absolutely no other instrument, which is placed on record to indicate that, it is capable of inflicting a cut or pierced injury. In the absence of any injury, whatsoever, it could not be attributed that, those instruments or implements were used by the appellant to perform any illegal abortion.

The learned Counsel would further point out that, the so called treatment said to have been given by the appellant, was of a superficial nature, where she had prescribed drugs such as antacid and pain killers, which were intended to alleviate the patient''s stomach pain and nothing more. The prosecution itself had produced exhibits P27 to P33, which; would indicate that, there was no expertise available with the appellant, for any attempt to carry out any complicated procedure on the deceased and therefore, would seek that the appellant be acquitted.

In the above facts and circumstances and on a close examination of the record, it is a fact that, there is no record of the condition, in which the deceased had visited the appellant at her hospital. It is only the subsequent treatment given to the deceased in the hospital of Dr. Tamagond and the Wanless hospital, that we have a record of the condition, in which the deceased was found from day to day. There is no record available to indicate that, a partial abortion had been carried out on the deceased. On the other hand, there is doubt as to whether no procedure, whatsoever, was carried out at the private hospital of Dr. Tamagond. The record would indicate that, there was a recommendation for D and C. But it is also doubtful whether it was merely a recommendation or a record of the actual procedure that had been carried out, as the record had been found tampered with, in that there were some interpolations and corrections carried out. Further, the record would indicate that, the uterus was clear, in that, there were no piece of foetus found, nor there was any injury present. In the absence of a sonography examination, any such partial abortion could not have been detected. The finding of the witness PW9, to the effect that, there were pieces of flesh, is inexplicable and is stated in the Kannada language and not evidently stated in clear medical terms. It is not evident as to what pieces of flesh were found inside the uterus by the said PW9, whereas the contrary medical report, namely Ex. P10, to the effect that, the uterus was found to be clear without injuries, is contrary to the opinion expressed by the said witness PW9. The record maintained by the Wanless hospital, where the victim was admitted on 10.11.2006, would indicate that, a complicated procedure was carried out. When her abdomen was opened up, it was found that, most of the organs including the abdomen and intestines etc., were infected and a large quantity of pus was removed and in spite of attempts on the part of the hospital to save her, she had sunk and died on 11.11.2006. It cannot therefore, be said that there was any medical evidence on record to indicate that, in view of the injuries caused by an unprofessional attempt of termination of pregnancy, that the body of the deceased was infected and she had ultimately succumbed to infection.

This is not forthcoming on a plain examination of the medical evidence, and not necessarily an involved examination and this is sought to be demonstrated with clarity by the learned Counsel Shri Shetty. On the face of it, this Court is convinced that, the charges which are of a serious nature, would necessarily have to be established through medical evidence that, it was on account of inadvertent injuries caused by the appellant to that portions of the body of the woman, which had been infected and ultimately resulted in her death. This aspect, in the opinion of this Court, is not established by reference to the medical evidence. The medical evidence, on the other hand, indicates otherwise.

Further, the deceased who was said to be a devadasi, it is quite possible that, she had tried ready remedies suggested by ill founded persons, to induce an abortion by herself, which would explain the heavy bleeding that she was suffering from, when she was first examined by the appellant and it would also explain the infection of her intestines and other portions of her body subsequently. The cause of death cannot, therefore be readily attributed to any injuries caused to the uterus or other portions of the body, where she would carry her foetus, in order to bring home the charges against the present appellant and to hold that, it is by virtue of such injuries caused, that the deceased had ultimately died. Given this background and in the opinion of this Court, on a careful examination of the medical evidence, it cannot be said that the prosecution had established its case beyond all reasonable doubt.

Consequently, the appeal is allowed. The judgment of the Court below is set aside. The appellant is acquitted. The fine amount, if any paid, shall be refunded to the appellant. The bail bond executed by the appellant shall stand cancelled.