Delhi District Court
State vs Kiran Srivastava on 21 August, 2025
IN THE COURT OF DR. SAURABH KULSHRESHTHA,
ADDITIONAL SESSIONS JUDGE-03: WEST DISTRICT,
TIS HAZARI COURT, DELHI.
CNR No. DLWT01-000598/2011
SC No. 57757/2016
FIR No. 12/2011
PS: Ranhola
State v. Kiran Srivastav
In the matter of:
State
(NCT of Delhi)
Versus
Kiran Srivastav
W/o Late Shri Vipin Srivastav
R/o C-645, Sangam Vihar,
New Delhi. ......Accused
Date of Institution : 06.04.2011
Date of Reserving Judgment : 31.07.2025
Date of Pronouncement : 21.08.2025
Decision : Convicted
JUDGMENT
1. Accused Kiran Srivastav has faced trial in the present case
for the commission of offences punishable under sections 313, 314, 315,
304, 468, 471 of the Indian Penal Code and section 27 of the Delhi
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 1 of 61
Medical Council Act, 1997.
Factual Background
2. The facts, as they have unraveled, narrate a sordid tale,
where a gullible victim fell prey to quackery and a precious human life
was lost on account of the culpably reckless actions of an unqualified,
fake medical practitioner. It is all the more lamentable that this fiasco
happened in the twenty first century under the nose of the authorities, in
the heart of the national capital, which otherwise boasts of a phenomenal
medical infrastructure coupled with a stringent regulatory framework.
Coming to the prosecution version, Ms. Mithlesh, the wife of the
complainant Sh. Ramesh Kumar was pregnant and in September 2009
she was running in her fourth month of pregnancy. On 22.09.2009, she
experienced abdominal pain and the complainant took her to Jai Mata
Poly Clinic, at Kumhar Colony, Vikas Nagar, Delhi which was being run
by the accused Kiran Srivastav. The accused prescribed certain
medications to Ms. Mithlesh and advised her to return for a follow-up
consultation on the next day. On 23.09.2009, the accused again
examined the wife of the complainant and advised that she was suffering
from pregnancy related complications and she needs to be operated
upon, however the operation posed no danger to her life. The accused
accordingly admitted the wife of the complainant in her clinic and
performed surgical termination of pregnancy and she was discharged on
24.09.2009. On 25.09.2009, the wife of the complainant again
experienced severe pain, whereupon she was re-admitted by the accused
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at her clinic. On 26.09.2009, when the condition of the wife of the
complainant deteriorated further, the accused advised the complainant to
take her to Family Hospital, Sant Pura. The doctors at Family Hospital,
Sant Pura, however, advised the complainant to take his wife to a Govt.
Hospital.
3. It is further the case of the prosecution that the wife of the
complainant was admitted at DDU Hospital on 26.09.2009 itself.
However, her detailed MLC report was prepared only on 30.09.2009 and
DD no. 27 A dated 30.09.2009 was recorded at P.S. Ranhola in this
respect. The police officials reached at DDU Hospital, however the
statement of the wife of the complainant could not be recorded as she
was unfit for statement. The condition of the complainant’s wife
continued to deteriorate, and she ultimately succumbed to her condition
on 07.10.2009 at DDU Hospital. DD Entry No. 8-A was registered at
Police Station Ranhola in this respect on the same date. Thereafter, ASI
Jai Singh recorded the statement of the complainant on 07.10.2009. The
post-mortem examination of the dead body of the victim was conducted,
and the cause of death was opined to be septicemia, secondary to a
criminal abortion allegedly performed by an unqualified medical
practitioner. Subsequently, on 10.12.2009, ASI Jai Singh submitted a
request to the Delhi Medical Council (DMC) seeking an expert opinion
in the matter. The Delhi Medical Council, vide its report dated
09.11.2010, concluded that the medical records of DDU Hospital, in
conjunction with the post-mortem findings, clearly indicated that the
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abortion procedure had been mishandled by an unqualified person. This
mishandling resulted in a serious medical condition, perforated
peritonitis, which progressed to septicemia, ultimately leading to the
death of the patient, Ms. Mithlesh. The Council further opined that Smt.
Kiran Shirivastava, an unqualified person, acted recklessly by
undertaking a medical procedure which was beyond her knowledge, skill
and competence, with scant regard to the life and safety of the patient
and that the actions on the part of Smt. Kiran Shrivastava constitute an
act of criminal negligence and the deceased expired on account of her
criminal negligence. On receipt of the report of the Delhi Medical
Council, the present FIR was registered on 25.01.2011.
4. During the course of investigation, it was revealed that the
accused, Smt. Kiran Srivastava, had been operating Jai Mata Polyclinic
while falsely representing herself to be a qualified medical practitioner.
The accused was arrested from her clinic on 25.01.2011 on being
identified by the complainant. In support of her purported qualifications,
the accused submitted various educational and professional certificates,
etc. and inter alia claimed that she had obtained a degree in BAMS
(Bachelor of Ayurvedic Medicine and Surgery). However, upon
verification, the said documents were found to be forged. The accused
was clearly not qualified to practice modern/ allopathic medicine or to
perform surgical procedures. Upon completion of the investigation,
charge-sheet was filed against accused Kiran Srivastava for the offences
punishable under sections 304/313/314/315/ 420/468/471 of the IPC and
section 27 of the Delhi Medical Council Act.
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Charge
5. On consideration of the entire material on record, charges
were framed against accused Kiran Srivastava for the offences
punishable under sections 313, 314, 315, 304, 468, 471 of the Indian
Penal Code and section 27 of the Delhi Medical Council Act, 1997, to
which the accused pleaded not-guilty and claimed trial.
Prosecution Evidence
6. In order to prove its case, the prosecution has examined 23
witnesses.
7. PW1 Shri Ramesh Kumar is the husband of the deceased
and he is the complainant in the present case. He has deposed that his
wife was pregnant and was running in the fourth month of pregnancy
and on 22.09.09, his wife had pain in the abdomen and he took his wife
to the clinic of Dr. Kiran at Kumhar Colony, Vikas Nagar. The accused
gave a medicine to his wife and sent them back. On the next day, he
again took his wife to the clinic of the accused and the accused told them
that his wife has to be operated and, in this operation, there is no danger
to her life and the accused admitted his wife in the hospital and had done
the operation on his wife. On the next day, his wife was discharged from
the clinic and in the night, his wife had heavy pain in the abdomen and
he made telephonic calls to the accused. In the morning on the next day,
he alone went to the clinic of the accused and the accused prescribed an
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injection and he purchased the injection and the same was given to his
wife.
8. PW1 further deposed that on 25.09.09 he had taken his wife
in the car of his neighbour Vijay Pal to the clinic of accused as his wife
was feeling pain. The accused again admitted his wife. On 26.09.09,
when the condition of his wife deteriorated further, the accused advised
him to take his wife to Family hospital, Sant Pura. Thereafter, he reached
at Family hospital, Sant Pura alongwith his wife but there the concerned
doctors advised him to take her to a Govt. Hospital. Since DDU Hospital
was the nearest he took his wife there and she was admitted there and her
treatment continued till 07.10.09 and on 07.10.09, his wife died. PW 1
further deposed that his wife died due to the wrong treatment given by
the accused. Police reached at DDU hospital and his statement was
recorded to this effect which is Ex. PW1/A. He and his brother identified
the dead body of his wife vide statements Ex. PW1/B and Ex. PW1/C
and postmortem on the body of his wife was conducted and thereafter,
the dead body was handed over to him vide receipt Ex.PW1/D.
9. PW1 further deposed that on 25.01.11, police officials of PS
Ranhola came to his house and inquired from him about the accused. He
accompanied the police officials to the clinic of the accused at Vikas
Nagar, Uttam Nagar, Delhi which was a Poly Clinic. A lady police
official was also with them at that time. Accused was sitting on the
counter of the clinic and on his pointing out, she was apprehended and
arrested vide memo Ex. PW-1/E and her personal search was conducted
State v. Kiran Srivastav
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vide memo Ex. PW-1/F by the Lady Police official. The accused was
interrogated by the police officials in his presence in detail. A disclosure
statement to this effect was also recorded by the police in his presence
which is Ex. PW-1/G. PW 1 further deposed that his statement was
recorded for a second time on 07.10.09 which is Ex. PW1/H.
10. PW2 Dr. Girish Tyagi, Secretary, Delhi Medical Council,
Delhi has deposed that he had been working as Secretary at the Delhi
Medical Council since 2007. On 30.12.09, a letter Mark X was received
from ASI Jai Singh of PS Ranhola for seeking opinion/ permission to
register a case for negligence against Dr. Kiran who was running a poly
clinic by the name of Kiran Poly Clinic at D-12, Kumar Colony, Vikas
Nagar, Delhi as treatment given to one Mithlesh w/o Sh. Ramesh Kumar,
r/o B-337, Vikas Nagar, Delhi by Dr. Kiran resulted in her death. The
case was deliberated in the Executive committee with experts and the
Delhi Medical Council observed that the medical records of DDU
Hospital and postmortem findings point to the mishandling of the
abortion by an unqualified person resulting in serious condition of the
patient in the form of perforated peritonitis which resulted in septicemia
leading to death of patient Mithlesh. Therefore, the decision of the Delhi
Medical Council that Smt. Kiran Shirivastava, an unqualified person,
acted recklessly by undertaking a medical procedure which was beyond
her knowledge, skill and competence, with scant regard to the life and
safety of the patient and that the actions on the part of Smt. Kiran
Shrivastava constitute an act of criminal negligence for which she is
State v. Kiran Srivastav
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liable to prosecuted under the provisions of the Indian Penal Code in
addition to Section 27 of Delhi Medical Council, Act, 1997. The detailed
opinion in this regard is Ex. PW.2/A and a copy of this opinion/ report
was sent to the complainant as well as to the SHO PS Ranhola.
11. PW3 ASI Pradeep Kumar deposed that on 30.09.2009 he
was posted at PS Ranhola as duty officer from 9:00 am to 5:00 pm and
on that day at about 12:40 pm, he received an information from the duty
HC Ram Chander of DDU hospital regarding admission of Mithlesh
Kumar w/o Ramesh Kumar R/o B-379, Vikas Nagar by her husband
after abortion and that she was in I.C.U. He recorded this information
vide DD No. 27-A, copy of which is Ex. PW3/A and this DD was
marked to ASI Jai Singh and Ct. Ranvir
12. PW4 HC Satpal Singh deposed that on 25.01.2011 he was
posted at PS Ranhola as duty officer from 9:00 am to 5:00 pm and on
that day at about 12:15 pm, he received a rukka from ASI Jai Singh sent
by SHO Insp. Sajjan Singh with the endorsement to register a case u/s
304 IPC and section 27 of Delhi Medical Council Act 1997 and to hand
over the investigation to Insp. Shambhu Dayal. Accordingly, he recorded
a formal FIR 12/11 under the above-mentioned provisions. The
computerized copy of the FIR is Ex. PW4/A and the u/s 65-B of the
Evidence Act regarding correctness of the FIR is Ex. PW4/B. He had
also made endorsement on the rukka which is Ex. PW4/C after recording
FIR. Further investigation of the case was marked to Insp. Shambhu
Dayal and he handed over a copy of FIR and original rukka to Insp.
State v. Kiran Srivastav
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Shambhu Dayal.
13. PW5 Shri Vijay Pal Singh deposed that Ramesh Kumar and
his wife Mithlesh are his neighbours and on 25.09.2009, Ramesh
requested to take his wife to the clinic of Dr. Kiran in his car as
Mithilesh was ill and Ramesh also told him that his wife Mithlesh was
being treated in the clinic of Dr. Kiran previously. PW 5 further deposed
that he took Mithlesh and Ramesh Kumar to the clinic of Dr. Kiran at
Vikas Nagar, Delhi at about 9:30/10:00 am on 25.09.09 and thereafter
PW5 went for his duty at Samaypur Badli and in the evening he received
a telephone call from Ramesh Kumar that the condition of his wife
Mithlesh had deteriorated and that she was being referred to Family
Hospital at Vikas Puri and that he should reach the clinic of Dr. Kiran.
PW5 further deposed that he reached the clinic of Dr. Kiran and Mithlesh
was taken to Family Hospital but the doctors at Family Hospital refused
to admit Mithlesh and thereafter they took Mithlesh to DDU Hospital
and got her admitted there. Mithlesh was pregnant at that time. Mithlesh
was treated at DDU Hospital for about 15 days but her condition did not
improve rather deteriorated and she died. PW5 further deposed that he
came to know that Mithlesh died due to wrong treatment given by Dr.
Kiran. He met the police officials regarding this case on 25.01.2011.
14. PW6 Dinesh deposed that Ramesh Kumar is his neighbour
and Ramesh told him that his wife Mithlesh was being treated in the
clinic of accused Dr. Kiran which was near their house and that Mithlesh
was pregnant for four months. On 25.09.09 at about 3:00 pm, Ramesh
State v. Kiran Srivastav
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told him that the condition of his wife had deteriorated and that she was
admitted in the clinic of accused Kiran. PW6 further deposed that in the
evening time at about 7:00 pm Ramesh again told him that he was taking
his wife to Family Hospital from the clinic of Dr. Kiran in the car of
Vijay Pal who was also his neighbour. He followed them on his
motorcycle to DDU Hospital. Mithlesh was admitted in DDU Hospital
but her condition did not improve and after 5-6 days of her treatment
there she died. Police met in connection with this case on 29.01.11. PW 6
further deposed that he along with Vijay Pal had identified accused
Kiran.
15. PW7 Ashok Kumar deposed that he runs a photo shop at the
above-mentioned address. On 26.01.11, he was called by the police
officials of PS Ranhola to reach at Jai Mata Poly Clinic, D-12, Saini
Enclave, Vikas Nagar, Delhi which is in his neighbourhood. He went
there and on the directions of the IO he took 16 photographs from
various angles from his digital camera and handed over those
photographs to the IO after developing the same. The said photographs
are Ex. PW7/A1 to A16.
16. PW8 Shyam deposed that he is doing the work of DTP
(Desk Top Publishing) and designing of various visiting cards, letter
heads etc. PW 8 on seeing two visiting cards of Dr. Kiran placed on
record deposed that the said cards had been designed by him by him
about three years ago. The cards are Ex. PW8/A1 and A2. He further
deposed that a monogram printed on the visiting cards on the left side in
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green colour and words JAI MATA POLY CLINIC in red colour were
got designed by Dr. Kiran from his shop. On 30.01.11, police officials of
PS Ranhola had come to his shop and had shown him the visiting cards
Ex.PW8/A1 and A2 and he had identified these visiting cards as the
same which were got prepared from his shop on behalf of Dr. Kiran.
17. PW9 Ct. Prakash Singh deposed that on 25.01.11, he was
posted at PS Ranhola and on that day he along with Insp. Shambhu
Dayal and Lady Ct. Dinesh and other police personnel reached at the
house of complainant namely Ramesh and they took the complainant
Ramesh along with them in search of accused Dr. Kiran. He further
deposed that they reached at Jai Mata Poly Clinic, D-Block, Sainik
Enclave, Delhi and there on the pointing out of the complainant, accused
Kiran was apprehended and arrested after interrogation vide memo Ex.
PW1/E and her personal search was conducted by W/Ct. Dinesh vide
memo Ex. PW1/F. Accused Kiran was sent to SGM Hospital along with
W/Ct. Dinesh for getting her medically examined. Insp. Shambhu Dayal
prepared site plan at the instance of complainant.
18. PW10 Dr. Komal Singh deposed that on 07.10.09 she was
posted at DDU Hospital as head of the department of Forensic Medicine
and on that day from 11:00 am to 12:30 pm, she conducted the
postmortem on the body of the deceased Mithlesh w/o Ramesh Kumar
aged 35 years female. The body of the deceased was brought by ASI Jai
Singh of PS Ranhola. There was alleged history of four months
amenorrhea with complaint of abdomen pain by the patient and she had
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 11 of 61
been taken to Kiran’s Poly Clinic where she was given some medicine
and then the patient was taken to same doctor on 23.09.09 where some
surgical intervention was made and patient was discharged on 24.09.09.
The patient’s condition deteriorated and the patient was taken back to Dr.
Kiran on 25.09.09 where she was referred to Family Hospital Sant Pura.
On 26.09.09 from there she was referred to DDU Hospital at 12:37 am.
PW 10 also deposed with respect to the observations made during
postmortem. PW10 further deposed that in her opinion cause of death
was septicemia secondary to the criminal abortion conducted by an
unqualified doctor in case of criminal medical negligence. All wounds
were ante-mortem in nature. Time since death consistent to the hospital
record. Her detailed postmortem report is Ex. PW10/A which is in her
handwriting and bears my signatures at point A. Blood in gauze piece
was preserved and handed over to the IO.
19. PW11 Ct. Jitender deposed that on 23.02.2011 he was
posted at PS Ranhola and on that day on the direction of the IO he took
exhibits of this case which were contained in one parcel along with a
letter addressed to CDMO to the office of CDMO Paschim Vihar vide
RC No. 17/21/11 after obtaining the same from the MHCM and after
deposing the said parcel in the office of Chief District Medical Officer
(CDMO), he handed over the acknowledged copy of RC to MHCM. He
further deposed that so long as the parcel of exhibits remained with him
nobody had tampered with the same.
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FIR No. 12/2011; P.S. Ranhola Page No. 12 of 61
20. PW12 Dr. Sunita Seth, Junior Specialist, Obs. and Gynae.,
DDU hospital, Delhi, deposed that on 26.09.09 patient Mithlesh Kumari
was brought to the DDU hospital with alleged history of abdominal
distention and breathlessness into one day; M. H. 4/30 days; Obstetric
history P3L3A2 all full term normal deliveries; Last was four months
abortion in a private hospital in Vikash Nagar; No significant past illness
and on examination, her general condition was poor; Per abdomen tenses
guarding plus, rigidity plus; per speculum, foul smelling discharge plus;
On per vaginum examination uterus 12-14 weeks, fixed as closed;
Bilateral adnexa mass with restricted mobility; X-Ray chest Gas under
diaphragm; Laparotomy was done on 26.09.09; Per op findings uterus 14
to 16 weeks foul smelling discharge 500 to 600 ml present; Sigmoid
cotton of 12 cm in uterus; gangrenous, multiple perforation in the uterus;
decision for hysterectomy and colostomy taken and done. PW12 further
deposed that the patient was examined by Dr. Anjali Sirohi who has left
the hospital and her present whereabouts are not known and that she had
worked with Dr. Anjali Sirohi and she can identify her handwriting and
signatures as she has seen her writing and signing during the course of
her duties. PW 12 further deposed that the MLC prepared by Dr. Anjali
Sirohi is Ex. PW12/A and the nature of injuries is grievous.
21. PW13 Dr. Kailashi Shekhar, CMO, NFSG office of Chief
District Medical Officer, West District, Paschim Vihar, New Delhi,
deposed that he has been working at the above-mentioned office since
1998 and in February 2011, an opinion was sought by SHO PS Ranhola
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regarding instrument and medicines seized in this case. A team
comprising of Dr. Anil Lata Batra and PW 13 was formed to give the
opinion. A sealed packet duly sealed containing 17 items was received
along with a letter of SHO. The seal was found intact and the packet was
opened by Dr. Anil Lata Batra and it was found to contain some articles
including some medicines. PW 13 deposed that they were of the opinion
that stethoscope, B.P. mentioning instrument and torch mentioned at
serial no. 1, 2 and 4 could be used for medical purpose and steel box
mentioned in the report could be used for surgical operation purpose and
all injections and medicines found in the packet were allopathic
medicines and item mentioned at serial no. 11 was sterile water for
injection and article mentioned at serial no. 13 was scalp vein set and can
be used for allopathic treatment. One of the instruments out of the 17
instruments in the steel tray could not be identified. All the instruments
and medicines were again sealed and returned to the IO. PW 13 further
deposed that the detailed report prepared by him and Dr. Anil Lata Batra
is Ex. PW13/A bearing his signature at point A and the signatures of Dr.
Anil Lata Batra at point B and the signatures of the Chief District
Medical officer (CDMO) Dr. B.K. Sharma at point C. He identified the
stethoscope as Ex. P1; N.P. Instrument as Ex. P2; steel tray having 17
items collectively as Ex. P3/1 to Ex. P3/17 out of which one steel
instrument which could not be identified is Ex. P3/17; all the medicines
are collectively Ex. P4/1 to Ex. P4/14 mentioned from serial no. 1 to 14
in the list of medicines.
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22. PW14 HC Gajender Singh deposed that on 28.01.11 he was
posted at PS Ranhola and on that day Insp. Shambhu Dayal IO of this
case handed over copies of six Educational certificates of accused Kiran
to him for verification out of which two were allegedly issued from
Ayurvedic and Unani Chiktsa Parishad, Patna, Bihar and one was issued
from Muzzafarpur, Bihar and three were marksheets of Hindi Sahitaya
Sammelan Allahabad and the said documents are Ex. PW14/A1 to Ex.
PW14/A6. Insp. Shambhu Dayal had also handed over a request letter
along with the copies of degree/ certificates. PW14 further deposed that
he went to Patna first and then to Muzaffarpur for verification of these
certificates/ degrees. The concerned authorities gave him reports
regarding certificates Ex. PW14/A1, Ex. PW14/A2 and Ex. PW14/A5
that they have not been issued from there respectively. The reports are
Ex. PW14/B and Ex. PW14/C respectively. He also went to Allahabad
for verification of Ex. PW14/A1, Ex. PW14/A4 and Ex. PW14/A6 but
these certificates could not be verified due to holidays. He returned to
Delhi on 03.02.11 and handed over the verified certificates along with
the reports to Insp. Shambhu Dayal and handed over the unverified
certificates to Reader of SHO PS Ranhola for sending the same through
Dak.
23. PW15 HC Panchu Ram deposed that on 02.06.2011 he was
posted at PS Ranhola and on that day Insp. Shambhu Dayal handed over
one sealed parcel having the seal of SDA for which he made entry in
register No. 19 at Sl. No. 231. On 23.02.2011 this parcel duly sealed was
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sent to CDMA Paschim Vihar through Ct. Jitender Kumar vide RC No.
17/21/11 for which he made entry in register No. 19 at the same serial
number. On 01.03.2011 the result of CDMA along with a parcel having
seal of SK was received by him from CDMA and the same was handed
over to Insp. Shambhu Dayal on the same day and he made entry in that
regard in register No. 19 at the same serial number. On 18.04.2012 the
case property was summoned by the court and the same was opened in
the court and was re-sealed with the seal of the court and he made entry
in the register in that regard. The copy of register No. 19 containing
entry No. 231/11 is Ex. PW15/A. The copy of RC register containing RC
No. 17/21/11 is Ex. PW15/B. Photocopy of receipt of CDMA is Ex.
PW15/C. PW 15 further deposed that so long as the case property
remained with him nobody had tampered with the same.
24. PW16 Lady Ct. Dinesh Kumari deposed that she was posted
at PS Ranhola from September 2010 to May 2011 and in the month of
January 2011, she joined the investigation in this case with Insp.
Shambhu Dayal and on that day she along with SI Rajpal had gone to the
house of complainant Ramesh Kumar at H. No. B-377, Vikas Nagar,
Delhi and from there they took the complainant Ramesh Kumar with
them and reached at the clinic of accused Dr. Kiran at Jai Mata Poly
Clinic and there on the pointing out of Ramesh Kumar accused Kiran
was apprehended and interrogated and arrested vide memo Ex. PW1/E
and she (PW 16) conducted the personal search of the accused vide
memo Ex. PW1/F. Site plan of the place of the incident was prepared at
the instance of complainant by Insp. Shambhu Dayal. On the direction of
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IO she took the accused to SGM Hospital for getting her medically
examined and thereafter the accused was brought at the PS and the
accused remained under her supervision and care in the ladies’ room at
PS.
25. PW17 Shri Vijender Kumar, Cashier Bihar State Ayurvedic
and Unani Chikitsa Parishad, K-15, Hanuman Nagar, PO Lohia Nagar,
Patna deposed that he has been deputed by Dr. Dhananjaya Sharma,
Registrar of Bihar State Ayurvedic and Unani Chikitsa Parishad to
depose in his place as Dr. Dhananjaya Sharma is unwell and unable to
come to Delhi. He along with the Registrar Dr. Dhananjaya had checked
their record after police officials of Delhi had come to enquire about the
certificate Ex. PW14/A1 in the name of Kiran Srivastava w/o Mistri Lal
and on 31.01.2011 Dr. Dhananjaya Sharma had issued a certificate that
the certificate shown to them having No. 45262 and Surgeon No. 2136
bearing name of Kiran Shrivastava is fake. The certificate to this effect is
Ex PW14/B bearing the signatures of Registrar Dr. Dhananjay Sharma at
point A. PW 17 also produced a similar type of certificate issued by Dr.
Dhananjaya which is Ex. PW17/A. In fact, on checking the register they
found that name of one Venketeshwar Parsad Singh S/o Ram Bilas Singh
appears in their register of physician at Sl. No. 2136 and the name of
Surgeon at Sl. No. 45262 is Bridge Bihari Lal s/o Bahadur Chand. The
certified photocopies of both the registers are Ex. PW17/B and Ex.
PW17/C respectively duly attested by Dr. Dhananjaya Sharma at point
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A. He identified the signatures of Dr. Dhananjaya Sharma as he had seen
him signing and writing during the ordinary course of his duties.
26. PW18 HC Randhir Singh deposed that during the
intervening night of 06/07.10.2009, he was posted at PS Ranhola as duty
officer from 8.00 pm to 9.00 am and on 07.10.2009 at about 08.20 AM,
he received information from DDU Hospital from the duty constable
Ram Chander regarding death of Mithlesh w/o Ramesh Kumar r/o
B-337, Vikas Nagar, Uttam Nagar who was admitted in the hospital on
26.09.2009. He recorded this information vide DD No. 8A which is in
his handwriting and marked the same to ASI Jai Singh. He produced the
original DD register containing DD No. 8A copy of which is
Ex.PW18/A.
27. PW19 Sh. Arun Kumar Singh, Controller of Examination,
BRA Bihar University, Muzaffarpur, Bihar, deposed that he has been
working as Controller of examination in the above said University since
2009. He further deposed that he has seen certificate Ex. PW14/A5
placed on record allegedly signed by Sh. H.S.P. Singh having registration
no. 29341 of 1997 issued in May 2002. He further deposed that as per
record, Sh. H.S.P. Singh never worked in the University in the year 2002
and hence this certificate is fake. He further deposed that HC Gajender
of PS Ranhola had also come to them to enquire about this certificate
and he had issued verification letter that the said marksheet Ex.
PW14/A5 has not been issued from their university and the said letter is
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 18 of 61
Ex. PW14/C which was issued by him after verifying the record of their
university.
28. PW20 SI Raj Pal has deposed that on 25.01.2011 he was
posted at PS Ranhola and on that day, he joined investigation in this case
with Inspector Shambhu Dayal and on his asking he went to D-12,
Sainik Enclave, Vikas Nagar, Delhi which was the clinic of the accused
Ms. Kiran Srivastava. Complainant Ramesh Kumar alongwith lady
constable Dinesh and constable Prakash was also present there. Accused
Kiran Srivastava was arrested after interrogation vide memo Ex. PW1/F
and her personal search was conducted by W/Constable Dinesh vide
memo Ex. PW1/F. Inspector Shambu Dayal also prepared a site plan of
the clinic. PW20 further deposed that he alongwith lady constable
Dinesh and accused went to S.G.M. Hospital and the accused was got
medically examined. They returned to the PS and Inspector Shambhu
Dayal again interrogated the accused in his presence and her disclosure
statement was recorded which is Ex. PW1/G. The accused was kept in
the custody of lady constable Dinesh in the PS in a room. PW 20 further
deposed that on the next day i.e. on 26.01.2011, he alongwith Inspector
Shambhu Dayal and lady constable Anita took the accused to her clinic
at D-12, Sainik Enclave, Vikas Nagar, Delhi and during the search of the
clinic from the ground floor and first floor certain equipment, medicines
and six certificates allegedly issued by Bihar University, Patna
University and Allahabad University were recovered. Photographer
Ashok was also called there and the photographer took the photographs
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 19 of 61
of the clinic. The medicines and the equipment were given sl. nos. 1 to
17 and were kept in a polythene and the said polythene was converted
into a parcel with the help of a white cloth and was sealed with the seal
of SDK and was seized vide seizure memo Ex. PW20/A. The accused
also handed over her electricity bill of the said clinic which was also
seized by the IO vide seizure memo Ex. PW20/B. The electricity bill is
Ex. A1 (two pages). Two visiting cards of the polyclinic were also
handed over by the accused to the IO which were seized vide seizure
memo Ex. PW20/B. The visiting cards are Ex. PW8/A1 and Ex.
PW8/A2. Seal after use was handed over to him. The articles/ medicines
were also identified by him and the same are exhibited as P1 (NP
instruments), P2 (steel tray), P3 (1 to 17 instruments) and P4 (1 to 14
medicines). PW 20 further deposed that accused Kiran got recovered
these articles from her clinic D-12, Sainik Enclave, Vikas Nagar, Uttam
Nagar, Delhi.
29. PW21 SI Mahesh Kumar deposed that he has been working
as Draftsman in Crime Branch since 1991. On 16.02.2011, he was
present at Rajouri Garden and reached at D-12, Sainik Enclave, Vikas
Nagar, Delhi on the asking of Inspector Shambhu Dayal of PS Ranhola.
It was a clinic and on the pointing of Inspector Shambhu Dayal he took
rough notes of three floors of the clinic after measuring the same. There
was a clinic on the ground floor and two beds were lying on the first
floor and there was a residence at second floor. PW 21 further deposed
that he prepared the scaled site plan of the said clinic/ residence and
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 20 of 61
handed over the same to the IO which is Ex. PW21/A and he destroyed
the rough notes after preparing the site plan.
30. PW22 SI Jai Singh deposed that on 07.09.2009 he was
posted at PS Ranhola as ASI and on that day on receipt of DD No. 27-A
he along with one constable had gone to DDU Hospital where one lady
Mithlesh was found admitted. He requested the doctor for her statement
however the doctor declared the patient unfit for statement. His
application is Ex. PW22/A which bears his signatures at point A and the
observation of the doctor at portion X. Then they returned to the PS.
Thereafter he again went to the hospital on 01.10.2009 but the doctor
again declared Mithlesh unfit for statement as observed at portion X1.
On 07.10.2009 DD No. 8-A was received in the PS which was regarding
death of Mithlesh. PW 22 further deposed that he reached at DDU
Hospital and prepared the inquest papers. Form No. 25.35 is Ex.
PW22/B; brief facts are Ex. PW22/C; and his application for postmortem
examination of deceased is Ex. PW22/D. PW 22 further deposed that the
dead body was identified by the relatives of the deceased namely Naresh
and Ramesh and their statements were recorded. After the postmortem,
dead body was handed over to the relatives of the deceased vide receipt
is Ex. PW1/D. He had requested the hospital authorities for supplying
the relevant papers of treatment of Mithlesh vide his application Ex.
PW22/E. He collected the PM report and other papers of the case.
Thereafter on 30.12.2009 he made a request to Delhi Medical Council
regarding the criminal negligence on the part of Dr. Kiran, at whose
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 21 of 61
clinic at Vikas Nagar the deceased had taken treatment. His application
in this regard is Ex. PW22/F. Along with his application, he had
submitted copy of MLC, copy of PM report, statement of the husband of
deceased and a copy of the degree of the doctor concerned for
examination by Delhi Medical Council. PW 22 further deposed that in
the month of November, 2010, the report from Delhi Medical Council
was given which is Ex. PW4/A. The report was marked to him and after
examination of the same he had submitted it before the SHO who vide
his endorsement at portion X on the statement Ex. PW1/A of Ramesh
Kumar which he had recorded on 07.10.2009 had directed the DO to
register the case and case FIR No. 12/11 was registered and further
investigation was given to Insp. Shambhu Dayal. PW 22 further deposed
that he had also handed over the photographs of the clinic of the Dr.
Kiran which he had taken during the course of enquiry. The said
photographs are Ex. PW22/G1 to Ex. PW22/G7. PW 22 further deposed
that during his enquiry it was alleged by the husband of the deceased that
his wife had taken treatment for two/ three days from the clinic of Dr.
Kiran and her condition deteriorated after taking the medicine prescribed
by the doctor before her admission in DDU Hospital.
31. PW23 Insp. Shambhu Dayal is the IO of the case and he
deposed that on 25.01.2011 he was posted at PS Ranhola and after
registration of the present case investigation was given to him. He
further deposed that he first reached at the house of the complainant
Ramesh Kumar and then along with the complainant he reached at the
place of the incident which was Dr. Kiran’s Clinic at D-12, Sainik
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 22 of 61
Enclave, Vikas Nagar, Delhi where Ramesh identified Dr. Kiran sitting
in the clinic. He made enquiry from Dr. Kiran and she admitted that she
had given treatment to the deceased Mithlesh. Lady Constable Dinesh
was also with him. He arrested the accused Dr. Kiran vide arrest memo
Ex. PW1/E. The personal search of accused Kiran was conducted by
Lady Ct. Dinesh and personal search memo Ex. PW1/F was prepared.
The disclosure statement of the accused was recorded which is Ex.
PW1/G. PW 23 further deposed that he had seized two visiting cards of
the accused’s clinic vide seizure memo Ex. PW20/B on which Dr. Kiran
BAMS was written along with address of the clinic Jai Mata Poly Clinic.
The cards are Ex. PW8/A1 and A2. PW 23 further deposed that from the
clinic he had also seized various instruments and the medicines lying in
the clinic which were total 17 in number and seizure memo Ex. PW20/A
was prepared. He had also seized the electricity bill vide seizure memo
Ex. PW20/B in the name of Kiran Srivastava of the address D-12, Sainik
Enclave, Vikas Nagar. The said bill is Ex. A1. He had made enquiries
from the accused regarding her qualification as a doctor to give treatment
relating to patients of pregnancy etc. The accused produced six
documents of her education qualifications which he seized vide seizure
memo Ex PW23/A. He had also prepared the site plan of the place of the
incident which is Ex. PW23/B. He had also got the Poly Clinic of the
accused photographed from outside and inside. The said photographs are
Ex. PW7/A1 to A16. The documents of accused are Ex. PW14/A1 to Ex.
PW14/A6. The articles seized were deposited in the Malkhana. PW 23
further deposed that the documents of educational qualifications of the
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 23 of 61
accused were sent to various authorities to verify about their genuineness
and the report Ex. PW14/B of the Unani Chikitsa Parishad, Patna was
received which stated that the degree No. 2136 was not issued from their
Council in the name of Kiran Srivastava and was wrong. The report of
Controller of Examination B.R. Ambedkar, Bihar University,
Muzaffarpur Ex. PW14/C also indicated that the BAMS marksheet of
Kiran Srivastava was not issued from that University. The medicines
and the instruments found in the clinic of the accused were sent to the
Chief Distt. Medical Officer of Delhi Government, Paschim Vihar and
their report Ex PW13/A was obtained which indicated that the medicines
and instruments seized were of use in allopathy treatment. PW 23 further
deposed that on 16.02.2011 he had taken SI Mahesh Kumar to the clinic
of the accused and SI Mahesh Kumar had taken rough notes and
measurements at his instance. Later on, he had collected the scaled site
plan from SI Mahesh which is Ex. PW21/A. The seized articles are
exhibited as P1(NP instrument), P2 (Steel trey), P3/1 to 17 (instruments)
and P4/1 to 14 (Medicines). He had recorded the statements of witnesses
whenever they were joined in the investigation and after completing
investigation charge sheet was filed against the accused in court.
32. PW24 Dr. Anjali Sirohi, has deposed that on 26.09.2009,
she was working in DDU Hospital as Senior Resident in Gynae
Department and on that day, patient namely Mithilesh Kumari, 32-year
female was brought to the hospital by her husband with history of
Second Trimester Abortion two days back in private hospital in Vikas
Nagar. The patient complained of abdomen distension and breathlessness
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 24 of 61
for one day. On examination, PW 24 found that her general condition
was poor; pulse was 130 per minute and B.P. 100/70 mm Hg; per
abdomen examination – abdomen was tense, guarding and rigidity was
present. On per speculum examination – foul smelling discharge was
found present. On per vaginum examination – uterus was found 12-14
weeks size, bilateral adnexa had mass with restricted mobility; chest X-
Ray revealed gas under diaphragm. PW 24 further deposed that the
decision for laparotomy (operation) was taken in view of uterine/ bowel
perforation with septicemic peritonitis (infection in blood). Thereafter,
the patient was operated on 26.09.2009 and as per operative findings, it
revealed uterus 14-16 weeks size, foul smelling purulent discharge, 15
cm of gangrenous intestine was removed from uterine rent; uterus had
multiple perforations; fetal skull removed from the perforation rent.
Therefore, the uterus was removed and colostomy was done. Thereafter
patient was shifted to ICU. PW 24 further deposed that the condition of
the patient and treatment given to her thereof, is mentioned in detail in
case sheet which is Ex. PW12/A. PW 24 further deposed that at the time
of appearance of the patient and during treatment, she suspected foul
play and she conveyed the same to the head of department and on
suggestion of the head of department, the matter was reported to the
police and late MLC was made on 30.09.2009. Thereafter PE was
closed.
Statement of the accused under section 313 Cr.P.C
33. Thereafter, the entire incriminating evidence was put to the
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 25 of 61
accused and her statement under section 313 Cr.P.C. was recorded. The
accused denied the prosecution version and stated that she is innocent.
The accused further stated she was not running Jai Mata Poly Clinic and
one Dr. Nawab Hussain was running the said clinic and she was only
working as his assistant. She further stated that she had not given any
medical treatment or advice to Ms. Mithlesh or her husband and she had
not conducted any operation on Ms. Mithlesh. She further stated that Dr.
Nawab Hussain was initially detained by the police however, for some
unknown reasons he was released and she was falsely implicated in the
present case. She further stated that she may have been falsely
implicated to save Dr. Nawab Hussain and the doctors of DDU hospital.
She further stated that she had not given any documents relating to her
medical qualifications and the same are forged and fabricated and she is
only 12th standard pass. She further stated that she had not got any
visiting cards prepared. The accused further stated that she has been
falsely implicated in the present case.
Defence Evidence
34. The accused chose not to lead any evidence in support of
her defence.
35. I have heard the Ld. Addl. PP for the State as well as the Ld.
Counsel for the accused Kiran Srivastav and have given due
consideration to their rival contentions and perused the record.
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 26 of 61
Appreciation of Evidence, Analysis of Contentions and Findings:
Findings qua offence under section 304 IPC
36. The version of the prosecution is that the accused, an
unqualified fake doctor, had been running Jai Mata Poly Clinic and from
22.09.2009 to 26.09.2009 she had given medical treatment to the victim
Ms. Mithlesh Kumari (wife of the complainant), who was four months
pregnant, and had even performed surgical termination of pregnancy
upon her, as a result of which her condition deteriorated. The victim was
thereafter admitted and treated at DDU hospital where she ultimately
succumbed to her condition on 07.10.2009.
37. Per contra, the accused has contended that she was not the
one running Jai Mata Poly Clinic and one Dr. Nawab Hussain was
running the said Clinic and she was only working as the Assistant of Dr.
Nawab Hussain. The accused has further contended that she had not
given any medical treatment or advice to the victim or her husband and
she had not performed any surgery on the victim.
38. Now coming to the evidence on record in this respect, PW1
who is the complainant in the present case has categorically deposed that
on 22.09.2009 he had taken his wife (victim), who was four months
pregnant, to Dr. Kiran who had given some medicine to her; and again
on the next day he took his wife to the clinic of Dr. Kiran where Dr.
Kiran stated that the victim needs to be operated upon and there is no
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 27 of 61
danger to her life and the accused performed the operation upon the
victim; and on the next day he again went to the clinic of Dr. Kiran and
she prescribed an injection which was administered to the victim. PW1
further deposed that on 25.09.2009 he had taken the victim to the clinic
of the accused as she was feeling pain and the accused re-admitted her
and on 26.09.2009 when her condition deteriorated, the accused advised
him to take the victim to Family Hospital, Sant Pura. Ultimately the
victim was admitted at DDU Hospital.
39. PW 1 was cross examined by the Ld. Counsel for the
accused and the record of his cross examination is as under:
“………I have been living at the above-mentioned
address for about 412/5 years. Accused did not give
me any prescription for the first time but gave
medicines. I did not know accused personally prior
to my visit to her clinic. My wife was admitted in
the morning of 23.09.09 at about 10:00 am. On
23.09.09, I alongwith my wife only visited the
clinic. I had not told to the police in my statement
that in the night, I had made a telephonic call to the
accused and also that the accused had given me a
injection. It is wrong to suggest that the accused had
not given any injection to me. On 26.09.09, at about
5:00 pm, the accused had told to take my wife to the
Family Hospital. We remained in the Family
Hospital for about ½ hr. Then we go to the DDU
Hospital. It took about 15-20 minutes in Car to cover
the distance between the Family Hospital and DDU
Hospital. We reached at the DDU Hospital at about
9:00 pm and at that time, my wife was not
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 28 of 61
unconscious but she was unable to stand and walk
and was not in a position to talk. My wife was
admitted in the DDU Hospital at about 11:00 pm and
her medical reports were prepared. After leaving the
clinic on 26.09.09, I have no talk with the accused
again. We had not made any complaint against the
accused till 26.09.09 because it was assured by the
accused that my wife would recover. It is wrong to
suggest that the accused has not given any treatment
to my wife. It is wrong to suggest that I alongwith
my wife had never visited the clinic of the accused
for treatment. It is wrong to suggest that my wife
had developed problems after falling from the stairs
and my wife have not died due to the treatment
given by the accused. I do not know the name of any
medicines given by the accused. I do not know
whether the police had recorded the statement of my
wife while she remained in the DDU Hospital. It is
wrong to suggest that I am deposing falsely and the
accused has been falsely implicated in this case….”
40. Ld. Counsel for the accused could not elicit anything
substantial in the cross examination of PW1 which discredits his
testimony or establishes the falsity of his allegations or furthers the
defence of the accused. There is nothing in the cross examination of
PW1 which establishes that he has falsely implicated the accused.
Neither the cross examination of PW 1 reveals any reason as to why PW
1 would falsely implicate the accused nor the accused has been able to
explain any such reason otherwise. Further, no suggestions have been
given to PW 1 in his cross examination that Dr. Nawab Hussain was
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 29 of 61
running the said Clinic and the accused was only working as the
Assistant of Dr. Nawab Hussain, which was the primary limb of the
defence of the accused.
41. In the judgment titled as Devender Kumar Singla v. Baldev
Krishan Singla, reported as 2005 (9) SCC 15 the Hon’ble Supreme Court
has observed that:
“……Significantly, there is also no suggestion to the
complainant during cross-examination by the
accused that the transaction was done on 27.7.1992
and not on 7.8.1992 as claimed by the complainant.
Merely because the accused stated that he had not
received the shares or that the transaction took place
on 27.7.1992 in his examination under Section
313 of Cr.P.C. that is really of no consequence. The
statement under Section 313 is not evidence. It is
only the accused’s stand or version by way of
explanation, when incriminating materials appearing
against him are brought to his notice.
12. Absence of any suggestion during cross
examination cannot be made up by a statement
under Section 313 Cr.P.C. At that stage, the
prosecution does not get an opportunity to question
the accused about his stand in the statement
under Section 313…..”
42. Accordingly, the failure on the part of the Ld. Counsel for
the accused to give suggestions to PW 1 with respect to the primary limb
of the defence of the accused, is a significant lapse. Therefore, the
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 30 of 61
submissions made by the accused to the effect that Dr. Nawab Hussain
was running the said Clinic and the accused was only working as the
Assistant of Dr. Nawab Hussain, in her statement under section 313
Cr.P.C., have no value. Admittedly there is no other positive evidence led
by the accused in this respect.
43. Further the version of PW1 has also been corroborated by
PW5 and PW6. PW5 and PW 6 are the neighbours of the complainant
(PW 1). PW 5 has deposed that on 25.09.2009 he had taken the
complainant and his wife in his car to the clinic of the accused and the
complainant had informed him that his wife was being treated in the
clinic of the accused previously. He further deposed that in the evening
he received a call from the complainant that the condition of his wife has
deteriorated and she has been referred to Family Hospital and thereafter
he reached at the clinic of the accused and had taken the wife of the
complainant to Family Hospital. PW5 further deposed that the staff of
the accused had followed them to Family Hospital and later-on he came
to know that the victim Ms. Mithlesh Kumari, died due to the wrong
treatment given by the accused. PW6 has also deposed that complainant
had told him that his wife was being treated at the clinic of accused Dr.
Kiran and on 25.09.09 at about 3:00 pm, the complainant told him that
the condition of his wife had deteriorated and that she was admitted in
the clinic of accused Kiran and in the evening time when the
complainant was taking his wife to Family Hospital from the clinic of
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 31 of 61
Dr. Kiran in the car of PW 5, he (PW 6) followed them on his
motorcycle to DDU Hospital.
44. PW 5 was also cross examined by the Ld. Counsel for the
accused. The record of the cross examination of PW 5 is as under:
“Today I do not remember the number of my car as I
had purchased the second-hand car and have sold the
same within six months of purchasing. On 25.09.09,
total four persons had gone to the clinic of Dr. Kiran
including one more lady with Mithlesh. The accused
referred and we all returned on the same day on
25.09.09 approximately at about 6.00 pm. The staff
of the accused Kiran detained us upto 9.00/10.00 pm
in Family Hospital on 25.09.09. We reached DDU
Hospital at about 10.00/11.00 pm and Mithlesh was
admitted there on the same day. At the time when I
was in the clinic of accused, there was another lady
staff. I do not know if any prescription has been
given by the accused. Police had come to my house
to record my statement probably on 24/25.01.11. My
statement was recorded after our identification of
accused Kiran. It is wrong to say that I am deposing
falsely at the instance of the complainant.”
45. PW 6 was also cross examined by the Ld. Counsel for the
accused. The record of the cross examination of PW 6 is as under:
“On 25.09.09 I alone went to the clinic of the
accused at about 3.00 pm. I do not know what is the
disease of the Mithlesh but I was sitting over there. I
was alone at the time there. On 25.09.09 at the time
of after 7.00 pm we took Mithlesh to the DDU
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 32 of 61
Hospital. We reached DDU hospital at 8.00 pm
along with my brother-in-law. It is wrong to say that
I am deposing falsely at the instance of
complainant.”
46. Ld. Counsel for the accused again could not elicit anything
substantial in the cross examination of PW 5 and PW 6 which could
discredit their testimonies. PW 5 and PW 6 have reiterated in the cross
examination that the victim had been taken to the clinic of the accused
for treatment. PW 5 has in fact unequivocally asserted that his statement
was recorded after identification of accused Kiran. Again, no suggestions
have been given to PW 5 and PW 6 in their cross examination that Dr.
Nawab Hussain was running the said Clinic or the accused was only
working as the Assistant of Dr. Nawab Hussain or that the accused had
not given any medical treatment to the victim Ms. Mithlesh.
47. The testimonies of PW-1, PW-5 and PW-6 are clear,
coherent and trustworthy and appear to be truthful. The complainant/ PW
1 had made clear allegations against the accused in his initial complaint
recorded immediately after the demise of the victim, without any delay
and hence there is no scope of any concoction or fabrication. Dealing
with minor discrepancies in the testimonies of PWs I am of the opinion
that the same are totally inconsequential and do not affect the
prosecution case. It has been consistently held by the Hon’ble Supreme
Court that there is bound to be some discrepancy between the narrations
of different witnesses when they speak on details, and unless the
contradictions are of a material dimension, the same should not be used
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 33 of 61
to jettison the evidence in its entirety. In fact, it has been held that no true
witness can possibly escape from making some discrepant details and
perhaps an untrue witness who is well tutored can successfully make his
testimony totally non-discrepant. Thus, trivial discrepancies and minor
embellishments ought not to obliterate evidence which has otherwise
been found to be reliable. Reference may be made to the judgments of
the Hon’ble Supreme Court titled as Leela Ram v. State of Haryana,
reported as A.I.R. 1999 SC 3717, State of U.P. v. M.K. Anthony reported
as AIR 1985 SC 48, Rammi @ Rameshwar v. State of Madhya Pradesh
reported as A.I.R. 1999 SC 3544 and Appabhai v. State of Gujarat
reported as AIR 1988 SC 696.
48. PW1 has further deposed that on 25.01.2011, police officials
of PS Ranhola came to his house and he accompanied the police officials
to the clinic of the accused at Vikas Nagar, Uttam Nagar, Delhi which
was a Polyclinic and the accused was sitting at the counter of the clinic
and on his pointing out, the accused was apprehended and arrested vide
memo Ex. PW 1/E. The police witnesses PW 23, PW 20, PW 9 and PW
16 have all deposed on similar lines. Thus the accused was herself found
sitting at the counter of Jai Mata Poly Clinic which shows that she was
the one running the said clinic. There is nothing substantial in the cross
examination of these witnesses nor there is any other reason which
persuades this Court to disbelieve their testimonies on this point. Ld.
Counsel for the accused has pointed out that PW 9, who had joined
investigation on 25.01.2011, has stated in his cross examination that
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 34 of 61
Ramesh was not present during one hour of investigation and
accordingly Ld. Counsel for the accused has contended that this
statement shows that Ramesh (complainant) had not joined investigation
on that day. However, this statement only implies that Ramesh
(complainant) was not present for the entire duration of one hour when
the police officials were present at the clinic for investigation. Otherwise
PW 9 has categorically stated that the police officials had taken Ramesh
to the clinic and Ramesh had identified the accused who was sitting at
the counter.
49. It is further seen that various photographs of Jai Mata Poly
Clinic have been placed on record which are Ex. PW7/A-1 to
Ex.PW7/A-16. The photographs of the clinic have been proved by the
photographer PW7 as well as by the IO PW 23. Ld. Counsel for the
accused has not been able to highlight any flaw in this respect. In one of
the photographs Ex. PW7/A-1 the board of Jai Mata Poly Clinic is
visible on which the name of “Dr. Kiran” has been clearly mentioned.
Further two visiting cards of the accused were also proved on record as
Ex. PW 8/A1 and Ex. PW 8/A2 by PW 8 who had designed/ printed the
same on the instructions of the accused. The said visiting cards were
seized by IO PW 23 vide seizure memo Ex. PW 20/B. It has been argued
by the Ld. Counsel for the accused that PW 8 has stated that the said
visiting cards were got prepared on behalf of the accused which shows
that the accused had not personally gone to get them prepared and the
same have been planted upon the accused. However, PW 8, during the
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 35 of 61
substantive part of his testimony, has stated that the said visiting cards
were got prepared by the accused and only at the end of his testimony
while identifying the visiting cards it is mentioned that they were got
prepared on behalf of accused Kiran. At any rate this issue was not got
clarified during cross examination of PW 8. When the entire testimony
of PW 8 is viewed holistically the reasonable inference is that the
visiting cards were got prepared by the accused only. Ld. Counsel for the
accused has not been able to highlight any other flaw in this regard. It is
seen that on the visiting cards Jai Mata Poly Clinic and the name of Dr.
Kiran have been printed and it has further been specifically mentioned
that “hamare yahan delivery case ki suvidha uplabdh hai”. The electricity
bill of the premises where Jai Mata Poly Clinic was running was also
seized by the IO PW 23 vide memo Ex. PW 20/B and the same is Ex.
A1. The electricity connection in the premises where the clinic was
being run is also in the name of the accused which also establishes that
the accused was running the said clinic and the accused has not been able
to adduce any evidence to show that the same was being run by Dr.
Nawab Hussain or by any other person.
50. The IO PW-23 has categorically stated in his cross
examination that he had filed documents on record to establish that Jai
Mata Poly Clinic was being run by the accused and these documents
include electricity bills, photographs of the board of the clinic with the
name of Dr. Kiran mentioned thereon and visiting cards of the clinic.
However, no suggestion was given to PW23 during his cross
examination that the said electricity bill and the visiting cards were not
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 36 of 61
recovered from the possession of the accused or that the photographs
placed on record are fabricated or that they do not pertain to the clinic of
the accused. It has further been argued by the Ld. Counsel for the
accused that no public witnesses were joined during investigation when
the aforesaid visiting cards, bill, etc. were recovered. First of all the non
joining of public witnesses during recovery proceedings, does not, by
itself, render the prosecution version doubtful. Furthermore, there is no
detailed cross examination of witnesses on this point. Thus, there is
absolutely no reason to disbelieve the aforesaid documents/ photographs
and the testimony of the IO PW 23.
51. It is further seen that various instruments/ medicines were
recovered from the clinic of the accused which were seized vide seizure
memo Ex. PW20/A. Again the non joining of public witnesses during
recovery proceedings, does not, by itself, render the prosecution version
doubtful. Furthermore there is no detailed cross examination of
witnesses on this point. The photographs Ex. PW7/A-1 to Ex.PW7/A-16
also establish the recovery of the said instruments/ medicines. In fact the
photographs of the premises clearly reveal a medical set up in the clinic
of the accused, which could have been used for allopathic treatment and/
or surgery. The site plan Ex. PW 21/A also depicts that the clinic was
being run on the ground floor and first floor of the premises in question.
The said instruments/ medicines were sent to the Chief District Medical
Officer, Delhi Government, and thereafter a team comprising of PW13
Dr. Kailash Shekhar, CMO and Dr. Anil Lata Batra examined the same.
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 37 of 61
PW13 has deposed that they were of the opinion that the stethoscope,
B.P. measuring instrument and torch mentioned at serial no. 1, 2 and 4
could be used for medical purposes; the steel box mentioned in the report
could be used for surgical operation purposes; all injections and
medicines found in the packet were allopathic medicines; the item
mentioned at serial no. 11 is sterile water for injection; and the article
mentioned at serial no. 13 is scalp vein set and can be used for allopathic
treatment. PW 13 identified the said instruments and medicines as Ex.
P1, Ex. P2, Ex. P3/1 to Ex. P3/17 and Ex. P4/1 to Ex. P4/14. The
detailed report prepared by PW 13 and Dr. Anil Lata Batra was proved
by PW 13 as Ex. PW13/A.
52. In view of the material on record, it is evident that there
exists not only direct oral evidence but also sufficient corroborative
material to establish that the accused was operating Jai Mata Poly Clinic
while falsely representing herself to be a qualified medical practitioner.
The record demonstrates that she not only administered allopathic
treatment but also undertook surgical procedures, particularly those
related to pregnancy and childbirth. The testimony of PW-1 specifically
confirms that the accused performed surgery on the victim for the
medical termination of her pregnancy and also provided medical
treatment to her from 22.09.2009 to 26.09.2009. The depositions of
PW-5 and PW-6 further corroborate the fact that the accused rendered
medical care to the victim at the said clinic. Conversely, there is no
credible evidence on record to substantiate the claim of the accused that
the clinic was operated by Dr. Nawab Hussain and that she merely
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 38 of 61
served as his assistant, with no involvement in the treatment of the
complainant’s wife. The accused has failed to produce any documentary
or oral evidence in support of her version, and PW-1 has categorically
denied the unsubstantiated suggestions put forth by the learned counsel
for the accused in this regard. While it was argued on behalf of the
accused that the complainant did not produce any prescription, medical
record, or admission/ discharge documents bearing the handwriting or
signature of the accused, such an argument is devoid of merit. It is
contrary to reason and opposed to common sense to expect that an
unqualified individual impersonating a doctor, on the strength of forged
credentials, would create written records or prescriptions under her own
name or signature. The absence of such documentation, therefore, is not
surprising and does not, in itself, undermine the prosecution’s case.
53. The MLC report of the victim Mithlesh Kumari was
prepared by Dr. Anjali Sirohi and the same has been proved by PW12 Dr.
Sunita Seth from DDU Hospital as Ex. PW12/A. PW24 Dr. Anjali
Sirohi, who was working in DDU Hospital as Senior Resident in Gynae
Department, was also examined afterwards and she has deposed that on
26.09.2009 the victim was brought to the hospital by her husband with
the history of Second Trimester Abortion two days back in private
hospital in Vikas Nagar. The history also corroborates the fact that
surgical termination of pregnancy had been conducted by the accused
upon the victim. She further deposed that decision for laparotomy
(operation) was taken in view of uterine/ bowel perforation with
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 39 of 61
septicemic peritonitis (infection in blood) and thereafter, the patient was
operated on 26.09.2009. Operative findings revealed uterus 14-16 weeks
size, foul smelling purulent discharge, 15 cm of gangrenous intestine
was removed from uterine rent, uterus had multiple perforations, fetal
skull was removed from the perforation rent, and therefore, the uterus
was removed and colostomy was done.
54. Coming to the cause of death of the victim, PW10 Dr.
Komal Singh, HOD Forensic Medicine, DDU Hospital, Delhi deposed
that she had conducted the postmortem on the body of deceased Mithlesh
Kumari (wife of the complainant) and in her opinion the cause of death
was ‘septicemia secondary to the criminal abortion conducted by an
unqualified doctor in case of criminal medical negligence and the
detailed postmortem report is Ex. PW10/A. PW 10 further deposed that
there was alleged history of four months amenorrhea with complaint of
abdomen pain by the patient and she had been taken to Kiran’s Poly
Clinic where she was given some medicine and then the patient was
taken to same doctor on 23.09.09 where some surgical intervention was
made and patient was discharged on 24.09.09; and the patient’s condition
deteriorated and the patient was taken back to Dr. Kiran on 25.09.09
when she was referred to Family Hospital Sant Pura and on 26.09.09
from there she was referred to DDU Hospital at 12:37 am.
55. In her cross examination, PW 10 has stated that she came to
know about the history of four-month amenorrhea with the complaint of
abdomen pain and that the victim was taken to Kiran’s Polyclinic where
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 40 of 61
she was given some medicines and then the patient was taken to the
same doctor where some surgical intervention was made, from the
inquest proceedings. Though she has stated that she came to know from
the IO that surgical intervention was made by an unqualified doctor,
however the fact of the matter is the cause of death has been opined as
‘septicemia’, secondary to the criminal abortion conducted by an
unqualified doctor. It is trite that the history will have to be narrated
either by the patient or by her relative or by the IO or for that matter by
any other person or it may even be gathered from contemporaneous
documents. A medical opinion cannot be rendered in a factual vacuum,
absent the necessary historical context. PW 10 has further stated that
Septicemia can develop after 48 hours of surgical intervention and
through any penetration by surgical or non-surgical object. PW 24 has
also stated that a patient suffering from septicemia can be cured,
however, not all the patients can be cured and where septicemia has
reached an irreversible stage, no treatment can cure the patient. Thus
what is important is that the cause of death of the victim is in consonance
with the case of the prosecution.
56. Further, another defence which has been attempted to be
projected is that the victim suffered injuries on account of fall from
staircase, purportedly on the premise that the case progress notes of
DDU hospital and the opinion of DMC mentions history of fall from
staircase. However, even as per the said history recorded therein the
alleged bleeding from vagina due to fall from stairs was prior in time to
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 41 of 61
the abortion conducted by the accused. It is possible that bleeding due to
fall from stairs may have been the immediate reason for the victim to
seek medical assistance at the clinic of the accused. However, it was for
the accused to have got this aspect clarified in the cross examination of
PW 1, but apart from giving a bald suggestion no proper clarification has
been sought in this respect from PW 1, during his cross examination. It
was also suggested to PW 24 that the above said injury on the uterus can
be caused by falling from height or from the stair case, which was again
denied by PW 24. Thus there is no cogent and viable evidence on record
to support this plea. Be that as it may, the accused proceeded to perform
surgical termination of pregnancy despite the fact she did not possess the
requisite qualifications or skills and thus this plea does not absolve the
accused from liability for the botched-up abortion which has been opined
to be the primary cause of death of the victim.
57. Ld. Counsel for the accused further argued that the victim
expired on account of the negligence of the doctors at DDU hospital, and
the accused is being made a scapegoat to save the doctors of DDU
hospital. PW 24 further unequivocally denied a suggestion in this
respect. Be that as it may, a mere bald suggestion, which too is
unequivocally denied, does not establish the defence of the accused in
the absence of any cogent and viable evidence. Again, apart from the
mere self-serving ipse dixit of the accused there is not even an iota of
evidence to support this plea. It was further argued that there is no
document to show that the victim was admitted to DDU Hospital on
26.09.2009 and her treatment records of DDU Hospital have not been
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 42 of 61
filed. However the MLC Ex. PW 12/A and the case progress notes of
DDU Hospital have been filed and they specifically mention the fact that
the victim was admitted to DDU Hospital on 26.09.2009. PW 24 has
clarified that at the time of admission of the patient and during her
treatment, she suspected foul play and she conveyed the same to the head
of department and on the suggestion of the head of department, the
matter was reported to the police and late MLC was prepared on
30.09.2009. Further the details of the treatment given to the victim at
DDU Hospital are also there in the testimony of PW 24. It is however
astonishing to note that one of the suggestions given to PW 24 during her
cross examination was that Second Trimester Abortion can be performed
by any non-medico person, which she obviously denied.
58. The detailed report/ opinion of the Delhi Medical Council in
the matter is Ex. PW2/A and the same has been proved by PW2 Dr.
Girish Tyagi, Secretary, Delhi Medical Council. The Delhi Medical
Council has observed that the medical records of DDU Hospital and
postmortem findings, point to the mishandling of the abortion by an
unqualified person resulting in serious condition of the patient in the
form of perforated peritonitis which resulted in septicemia leading to
death of patient Mithlesh; and therefore, Delhi Medical Council opined
that Smt. Kiran Shirivastava, an unqualified person, acted recklessly by
undertaking a medical procedure which was beyond her knowledge, skill
and competence, with scant regard to the life and safety of the patient
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 43 of 61
and that the actions on the part of Smt. Kiran Shrivastava constitute an
act of criminal negligence for which she is liable to prosecuted.
59. The cumulative effect of the evidence on record is, that it
has been established beyond reasonable doubt, that the accused
administered medical treatment to the victim, Mithlesh (the wife of the
complainant), during the course of her pregnancy, and further performed
a surgical procedure to terminate the said pregnancy, despite not being a
qualified medical practitioner. By her own admission, the accused
possessed no medical degree and had only completed education up to
12th standard. The medical history recorded at DDU Hospital
corroborates these facts. The opinion of the medical practitioners leads to
the irresistible conclusion that the cause of death was septicemia,
secondary to the criminal abortion conducted by an unqualified doctor
and the evidence on record establishes that the said unqualified doctor
was none but the accused. The victim expired on account of mishandling
of her abortion by the accused, who conducted a surgical procedure for
termination of pregnancy which was beyond her knowledge, skill and
competence.
60. Coming to the question as to what offence has been
committed by the accused, it is necessary to examine the provisions of
section 299 IPC and section 304 IPC which provide as under:
“299. Culpable homicide.–Whoever causes death
by doing an act with the intention of causing death,
or with the intention of causing such bodily injury asState v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 44 of 61
is likely to cause death, or with the knowledge that
he is likely by such act to cause death, commits the
offence of culpable homicide…….
304. Punishment for culpable homicide not
amounting to murder.–Whoever commits culpable
homicide not amounting to murder shall be punished
with imprisonment for life, or imprisonment of
either description for a term which may extend to ten
years, and shall also be liable to fine, if the act by
which the death is caused is done with the intention
of causing death, or of causing such bodily injury as
is likely to cause death;
or with imprisonment of either description for a term
which may extend to ten years, or with fine, or with
both, if the act is done with the knowledge that it is
likely to cause death, but without any intention to
cause death, or to cause such bodily injury as is
likely to cause death….”
61. It stands established that the accused was not a registered
medical practitioner and did not possess any degree in medicine/ surgery.
By her own admission, her educational qualification was only 12th
standard pass. Despite this, she not only prescribed allopathic medicines
but also ventured into the highly specialized and inherently risky field of
surgery and undertook a surgical abortion, which falls within the domain
of trained and qualified medical professionals/ surgeons. It is trite that
the accused knew that once she is performing surgical abortion on a
patient the act is laden with a risk to the extent that it could have caused
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 45 of 61
death of the patient/ victim. This knowledge is to be assessed from the
standpoint of a reasonable person and a bare and unsubstantiated denial
by the accused would not suffice. Viewed through the lens of a
reasonable person, the only rational conclusion is that the accused was
aware that the surgical procedure she undertook was likely to cause the
death of the victim. Had a duly qualified medical practitioner caused the
death of a patient in similar circumstances due to gross negligence, the
offence might have fallen within the ambit of Section 304A of the Indian
Penal Code. However, in the present case, the conduct of the accused
was so grossly reckless, devoid of minimal competence, and marked by
such conscious disregard for human life, that the appropriate provision
applicable is Section 304 Part II IPC, and not Section 304A IPC.
62. In this respect reference may be made to the following
observations of the Hon’ble Madras High Court in the judgment titled as
Kanagalakshmi v. Inspector of Police, Thingalur Police Station, Erode
District, Crl. A. No. 583 of 2003 decided on 14.03.2011:
“…….Now coming to the offence, the learned
counsel would rely on a judgment of the Hon’ble
Supreme Court in Juggankhan v. The State of
Madhya Pradesh reported in A.I.R.1965 Supreme
Court 831 to contend that at the most, the offence
said to have been committed by these accused would
only fall under Section 304 A I.P.C But I am not able
to agree with the said argument, for the reason that
in the case before the Hon’ble Supreme Court, the
case was registered against a Homoeopathy doctor.
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 46 of 61
The said doctor administered 24 drops of
Stramonium and a leave of dhatura without studying
its effect and the patient died of poisoning. The
Hon’ble Supreme Court found that the poisonous
contents of the leaf had not been satisfactorily
established and thus the prosecution failed to prove
that the dose given to the deceased was necessarily
fatal. Therefore, the Hon’ble Supreme Court has held
that Section 299 would not be satisfied as it cannot
be held that the accused administered the
stramonium drops and dhatura with the knowledge
that he was likely by such an act to cause the death
of the deceased. In those circumstances, the Hon’ble
Supreme Court convicted the accused under Section
304-A I.P.C. But the facts of the present case are
distinguishable. Here, admittedly, these two accused
were not registered medical practitioners and did not
have any experience in surgery. Surgery is not an
ordinary act, which can be done by any individual.
Even trained doctors at times are nervous of doing
surgery because of the fear for consequences of such
surgery. Here, two quacks, who did not have any
medical knowledge had gone to the extent of
performing surgery knowing the consequences.
Thus, the act of the accused squarely falls under
third limb of Section 299 I.P.C. They could be
attributed with knowledge that the act of surgery is
likely to result in the death. Thus, the offence said to
have committed by these accused would squarely
fall under Section 304 I.P.C. Therefore, in my
considered opinion, the trial Court was right in
convicting these appellants under Section 304 part
II. I.P.C….”
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 47 of 61
63. In view of the foregoing discussion, the inescapable
conclusion is that the accused is guilty of the offence of culpable
homicide not amounting to murder and is therefore liable to be convicted
for the offence punishable under section 304 (Part II) read with section
299 of the Indian Penal Code.
Findings qua offences under section 312/313/314/315 IPC.
64. Now, section 312 of the Indian Penal Code penalizes the act
of causing miscarriage of a woman with a child or a woman who is quick
with a child, while section 313 IPC, the aggravated form of this offence,
springs into operation where the miscarriage is caused without the
consent of the woman. However, section 3(1) of the Medical
Termination of Pregnancy Act, 1971 creates an exception in as much as
it stipulates that notwithstanding anything contained in the Indian Penal
Code (45 of 1860), a registered medical practitioner shall not be guilty of
any offence under that Code or under any other law for the time being in
force, if any pregnancy is terminated by him in accordance with the
provisions of the Medical Termination of Pregnancy Act. Be that as it
may, the accused is not entitled for the protection under section 3(1) of
the Medical Termination of Pregnancy Act, 1971 as she was not a
registered medical practitioner but only a quack/ fake doctor.
65. Coming to the issue as to when can a woman be considered
as one who is quick with a child, it is pertinent to note that in the
judgment titled as Ashaben v. State of Gujarat, Special Criminal Appeal
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 48 of 61
No 1919 of 2015 decided on 16.04.2015 by the Hon’ble High Court of
Gujarat it was observed:
“…A woman is considered to be with child as soon
as she becomes pregnant. Quickening is the name
applied to peculiar sensations experienced by a
woman about the fourth or fifth month of pregnancy.
As stated in Modi on Medical Jurisprudence and
Toxicology, at the first perception of “quickening” or
the foetal movement by the mother, she is said to be
“quick with the child”, and occurs at any time
between 18-20 weeks. This term arises from the old
notion that a foetus becomes endowed with life and
secures an identity apart from the mother, when the
movements are felt by the mother. However, causing
miscarriage of a woman “quick with child” is
considered a much graver offence, than causing
miscarriage of a woman “with child”…..”.
66. Adverting to the facts of the present case, it is stated that the
victim was approximately four months pregnant at the time of the
incident. However, no conclusive medical record has been proved to
definitively establish the exact gestational age of the pregnancy at the
time of the abortion. In the absence of clear evidence demonstrating that
the pregnancy had progressed beyond 18 weeks, it cannot be held that
the victim was “quick with child” within the meaning of Section 312 of
the Indian Penal Code. Furthermore, it is neither the prosecution’s case
nor has it otherwise been established that the abortion was carried out
without the consent of the victim. The facts demonstrate that the victim
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 49 of 61
consented to the procedure. Accordingly, the essential ingredients
required to attract the offence under Section 313 IPC are not satisfied,
and thus, the said provision is not applicable in the present case.
67. Be that as it may, the case is covered under the first part of
section 312 IPC as the accused caused miscarriage of the victim who
was a woman with a child, although the victim cannot be said to be a
woman who was quick with a child. Section 52 IPC provides that
nothing is said to be done or believed in “good faith” which is done or
believed without due care and attention. In the present case, the conduct
of the accused in undertaking a surgical abortion, despite being a totally
unqualified person, can be said to be manifestly devoid of due care and
attention. Consequently, it cannot be held that the accused acted in good
faith for the purpose of saving the life of the victim, as contemplated
under Section 312 IPC. Further the offence under section 312 IPC is a
minor offence vis-à- vis the offence under section 313 IPC. In essence, it
is nothing but the offence under section 313 IPC sans the element of lack
of consent of the woman. In fact, Section 313 IPC expressly refers to and
builds upon the foundational offence under Section 312 IPC. Therefore,
even though no specific charge for the offence under Section 312 IPC
has been framed against the accused, a conviction under the said
provision is permissible in law by virtue of Section 222 of the Code of
Criminal Procedure, as it is a minor offence included within the graver
charge under section 313 IPC.
68. Coming further this is not a case where the act was done to
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 50 of 61
prevent the child from being born alive or causing it to die after its birth
as the victim was only approximately four months pregnant and
therefore section 315 IPC is not attracted.
69. However, section 314 IPC penalizes an act whereby a
person with the intent to cause miscarriage of a woman with child,
causes the death of such woman and it is not essential for this offence
that the offender should know that the act is likely to cause death. Thus,
knowledge that the act is likely to cause death of the woman is not
relevant for this offence under section 314 IPC and this factor
distinguishes it from the offence under section 304 (II) IPC where proof
of the fact that the offender knew that by such act, he is likely to cause
death, is a sine qua non. On facts the accused acted with the intent to
cause miscarriage of the victim and her act caused the death of the
victim. It is not the requirement of section 314 IPC that the accused
should have known that her act was likely to cause death of the victim.
At the cost of repetition it may be noted that the accused is not entitled
for the protection under section 3(1) of the Medical Termination of
Pregnancy Act, 1971. Therefore, the ingredients of the offence under
section 314 (Part I) IPC are made out and the accused is liable to be
convicted for the same.
Findings qua offences under section 468/ 471 IPC
70. The record further reveals that during the course of
investigation, the accused provided six documents regarding her
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 51 of 61
educational/ professional qualifications which are Ex. PW4/A1 to Ex.
PW14/A6 and the same were seized vide memo Ex. PW23/A. The said
documents are two BAMS certificates of surgeon and physician, two
mark-sheets of Vaidya Visharad Course, marksheet of BAMS Pre
Ayurvedic examination and degree of Vaidya Visharad.
71. PW14 HC Gajender went to Ayurvedic and Unani Chikitsa
Parishad, Patna, Bihar for verification of the certificates Ex. PW14/A-1,
Ex. PW14/A-2 and Ex. PW14/A-5 and the reports Ex. PW14/B and
Ex.PW14/C were received. PW17 Vijender Kumar, Cashier, Bihar State
Ayurvedic and Unani Chikitsa Parishad, Patna, Bihar has deposed that
after checking their record regarding Ex. PW14/A-1, on 31.01.2011 Dr.
Dhananjay Sharma, Registrar of the Institution had issued a certificate
Ex. PW14/B that the Certificates having no. 45262 and Surgeon No.
2136 bearing the name of Kiran Shrivastava are fake and a similar
certificate issued by the Registrar is Ex. PW17/A. PW17 further deposed
that on checking the register they found that name of one Venkateshwar
Prasad Singh s/o Ram Bilas Singh appears in their register of physicians
at serial no. 2136 and the name of the surgeon at serial no. 45262 is Brij
Bihari Lal s/o Bahadur Chand and the certified copies of both the
registers are Ex. PW17/B and Ex. PW17/C. PW17 identified the
signatures of Dr. Dhanajay Sharma, Registrar. There is nothing in his
cross examination which discredits his testimony and I have no other
reason to disbelieve his testimony.
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 52 of 61
72. PW19 Shri Arun Kumar Singh Controller of Examination,
B.R. Ambedkar, Bihar University, Muzaffarpur deposed that the
certificate Ex. PW14 /A-5 allegedly signed by Shri H.S.P. Singh having
registration no. 29341 of 1997 issued in May, 2002 is fake and as per
record Shri H.S.P. Singh never worked in the said University in the year
2002; and that PW19 Shri Arun Kumar Singh had issued a letter Ex.
PW14/C in this respect during investigation. There is nothing in his cross
examination which discredits his testimony and I have no other reason to
disbelieve his testimony.
73. The accused has given a bald explanation in this regard in
her statement under section 313 Cr.P.C. that she had not given these
documents to the IO. However, no such suggestion has been given to the
IO PW 23 during his cross examination that the said documents were not
recovered from/ provided by the accused, although this fact was
categorically asserted by PW23 in his examination in chief. Moreover, it
is seen that the documents bear the name and other details of the accused
and two of the documents even bear her photographs (Ex. PW14/A1 and
Ex. PW14/A2). Accordingly, there is no reason to believe that said
documents were not handed over by the accused to the IO or were not
seized by the IO from the accused. It is clear that on the basis of these
documents only, the accused had been claiming that she was a qualified
medical practitioner. There is absolutely no reason or occasion for
anyone else to fabricate the said documents and plant them on the
accused.
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 53 of 61
74. Now the aforesaid said documents have been found to be
forged. Section 463 IPC defines forgery and section 465 IPC provides
for punishment of forgery. Forgery is nothing but the making of a false
document with the intention specified in the provision. Further, section
468 IPC penalizes an aggravated form of forgery where forgery has been
committed for the purpose of cheating a person. Section 471 IPC
criminalizes the act of fraudulently or dishonestly using a forged
document as if it were genuine. Once a document is found to be forged, a
natural and inescapable inference follows, that someone must have
fabricated or caused the fabrication of the such a document.
75. Now, under section 114 of the Indian Evidence Act the
Court may presume the existence of any fact which it thinks likely to
have happened, regard being had to the common course of natural
events, human conduct and public and private business, in their relation
to the facts of a particular case. One of the illustrations appended to
section 114 of the Indian Evidence Act is that the Court may presume
that a man who is in possession of stolen goods soon after the theft is
either the thief or has received the goods knowing them to be stolen,
unless he can account for his possession. Drawing an analogy from the
aforesaid illustration, in a case where a forged document is recovered
from the possession of the accused and where such document operates to
the benefit of the accused, the Court may, by invoking the presumption
under Section 114, infer that it was the accused who was responsible for
the forgery of the same, unless she furnishes a cogent and satisfactory
explanation as to how the forged document came into her possession, or
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 54 of 61
adduces evidence to establish that the forgery was committed by some
other person and that she merely came into possession or made use of the
document without knowledge of its forged nature. In this context, the
provisions of Section 106 of the Indian Evidence Act are also attracted,
which lay down that when any fact is especially within the knowledge of
a person, the burden of proving such fact lies upon him. Therefore, it
was incumbent upon the accused to specifically plead and prove as to
how the forged documents came into her possession or to otherwise
displace the presumption arising against him.
76. In this respect reference may be made to the judgment titled
as State of West Bengal v. Mir Mohammad Omar reported as 2000 (8)
SCC 382 wherein it has been observed by the Hon’ble Supreme Court:
“……The pristine rule that the burden of proof is on
the prosecution to prove the guilt of the accused
should not be taken as a fossilised doctrine as though
it admits no process of intelligent reasoning. The
doctrine of presumption is not alien to the above
rule, nor would it impair the temper of the rule. On
the other hand, if the traditional rule relating to
burden of proof of the prosecution is allowed to be
wrapped in pedantic coverage the offenders in
serious offences would be the major beneficiaries,
and the society would be the casualty.
In this case, when prosecution succeeded in
establishing the afore narrated circumstances, the
court has to presume the existence of certain facts.
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 55 of 61
Presumption is a course recognised by the law for
the court to rely on in conditions such as this.
Presumption of fact is an inference as to the
existence of one fact from the existence of some
other facts, unless the truth of such inference is
disproved. Presumption of fact is a rule in law of
evidence that a fact otherwise doubtful may be
inferred from certain other proved facts. When
inferring the existence of a fact from other set of
proved facts, the court exercises a process of
reasoning and reach a logical conclusion as the most
probable position. The above principle has gained
legislative recognition in India when Section 114 is
incorporated in the Evidence Act. It empowers the
court to presume the existence of any fact which it
thinks likely to have happened. In that process court
shall have regard to the common course of natural
events, human conduct etc. in relation to the facts of
the case…….”
77. Adverting to the facts of the present case the aforesaid
documents Ex. PW4/A1 to Ex. PW14/A6 are the educational/
professional certificates, etc. in the name of the accused. It is clear that
on the basis of these documents only, the accused had been claiming that
she was a doctor qualified to practice medical profession. The documents
have been recovered from the possession of the accused. No explanation
has been offered by the accused as to how she came into possession of
these documents, nor has she led any evidence to suggest that the
documents were forged by some other person and subsequently handed
over to her. The circumstances relating to the origin and acquisition of
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 56 of 61
these documents lie exclusively within the personal knowledge of the
accused, and as such, the burden of proving these facts was upon her
under Section 106 of the Indian Evidence Act. Accordingly, in the
absence of any plausible or satisfactory explanation from the accused,
the Court is justified in drawing a presumption under Section 114 of the
Indian Evidence Act in conjunction with Section 106 of the Indian
Evidence Act that it was the accused who had committed forgery of the
said documents.
78. In this regard reference may be made to the following
judgments:
(i) Bank of India vs. Yeturi Maredi Shanker Rao reported as 1987 (1)
SCC 577 wherein it was observed:
“…As regards the offence under Section 467 read
with Sec. 109, the learned High Court acquitted the
respondent because it came to the conclusion that
there is no evidence to establish as to who forged the
signatures of P.W. 1 on the withdrawal form. It is no
doubt true that so far as the evidence about the
forgery of the signatures of P.W. 1 on the withdrawal
form is concerned there is no evidence except the
fact that the signatures are forged and the further fact
that this withdrawal form was in the possession of
respondent-accused who presented it in the Bank
and obtained money therefrom and pocketed the
same. From these facts an inference could safely be
drawn that it was the respondent-accused who gotState v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 57 of 61
signatures of P.W. 1 forged on this document as it
was he who used it to obtain money from the Bank
from the account of P.W. 1 and pocketed the same It
is no doubt true that there is no evidence as to who
forged the signatures of the withdrawal form but the
circumstances indicated above will lead to the only
inference that it was the accused-respondent who got
the signatures of P.W. 1 forged on the withdrawal
form. In this view of the matter therefore the
acquittal of the respondent for an offence
under Section 467 read with Sec. 109 also could not
be justified….”
(ii) Padum Kumar v. State Of Uttar Pradesh reported as AIR
2020 SC 447, wherein it was observed:
“……..19. In the light of the evidence of PWs 1 to 3
and other evidence, the High Court rightly found
that the appellant who delivered the registered
envelope at the place of the complainant-PW-1 is
bound to explain as to who made the alleged
signature in Ex.-P4-delivery slip. In the absence of
any explanation by the appellant-accused, as held by
the High Court, a presumption is to be raised against
the appellant who delivered the envelope as he is the
only person having knowledge of the same. From
the evidence of PW-3-Dr. M.L. Varshney, the
prosecution has proved that the envelope contained
valuable security-four Indira Vikas Patra of value of
each Rs.5,000/- totalling Rs.20,000/-. Upon
appreciation of evidence adduced by the
prosecution, the courts below rightly recorded the
concurrent findings that the appellant has forged the
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 58 of 61
signature of PW-2-Devesh Mohan and the
conviction of the appellant under Sections 467 and
468 IPC is based upon the evidence and the
conviction does not suffer from any infirmity
warranting interference…..”
79. It goes without saying that the accused used to charge fees
from her patients after fraudulently claiming to be a qualified medical
practitioner, relying upon the forged documents referred to herein-above.
The primary intention behind the creation of these forged documents was
clearly to cheat the patients and induce them to believe that the accused
was a duly qualified doctor and part with their money. The ingredients of
the offence under section 468 IPC are therefore established and
consequently the accused is liable to be convicted for the offence under
section 468 IPC. However, in so far as Section 471 IPC is concerned,
there is no clear or conclusive evidence on record to demonstrate that the
accused actually used or produced the forged documents before any
competent authority or person as genuine, for the specific purpose of
proving her alleged qualifications as a doctor. In the absence of such
proof, the accused cannot be convicted for the offence under Section 471
IPC.
Findings qua the offence under section 27 of the Delhi Medical Council
Act
80. It may be noted that Section 27 of the Delhi Medical
Council Act provides as under:
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 59 of 61
“27. False assumption of Medical Practitioner or
Practitioner under this Act to be an offence. – Any
person who falsely assumes that he is a medical
practitioner or practitioner as defined in Clause (7)
of Section 2 and practises the modern scientific
system of medicine, shall be punishable with
rigorous imprisonment which may extend up to
three years or with fine which may extend up to Rs.
20,000 or with both.
Explanation. – Under this section, punishment can
be awarded only to medical practitioners as defined
in Section 2(7) of this Act and no punishment may
be awarded to any one practising Veterinary
medicine or Veterinary surgery or Homoeopathic or
the Ayurvedic or the Siddha or the Unani System of
Medicine or those holding BAMS or BIMS degree.
81. Further section 2(7) of the Delhi Medical Council Act
defines “Medical practitioner” or “practitioner” as a person who is
engaged in the practice of modern scientific system of medicine and all
its branches and has qualifications as prescribed in the First, Second or
Third Schedule to the Indian Medical Council Act, 1956 (102 of 1956).
82. Adverting to the facts of the present case, the material on
record clearly establishes that the accused was engaged in the practice of
modern scientific medicine without possessing the requisite
qualifications as mandated under law. The evidence demonstrates that
the accused not only administered allopathic treatment to the victim but
also performed a surgical procedure upon her. Notably, even after the
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 60 of 61
tragic incident of the botched abortion–which resulted in the death of
the victim on 07.10.2009–the accused did not cease her illegal medical
practice. On the contrary, she continued to operate her clinic and, in fact,
was found present at the said clinic at the time of her arrest on
25.01.2011, thereby indicating that she continued her unauthorized
medical quackery with impunity. In view of the above, the accused is
clearly liable to be convicted for the offence punishable under Section 27
of the Delhi Medical Council Act, which prohibits the practice of
modern scientific medicine by unregistered and unqualified persons.
Conclusion
83. The net result is that the prosecution has been able to
establish its case against accused Kiran Srivastav beyond reasonable
doubt. Accordingly, the accused Kiran Srivastav is convicted for the
offences punishable under sections 304 (Part II), 312 (Part I), 314 (Part
I) and 468 of the Indian Penal Code and section 27 of the Delhi Medical
Council Act, 1997. Accused Kiran Srivastav shall be heard on the point
of sentence separately.
Digitally signed
by SAURABH
SAURABH KULSHRESHTHA
KULSHRESHTHA
Date: 2025.08.21
(Pronounced in the open court 16:00:04 +0530
on 21.08.2025)
(Dr. Saurabh Kulshreshtha)
Additional Sessions Judge-03 (West)
Tis Hazari Courts, Delhi
State v. Kiran Srivastav
FIR No. 12/2011; P.S. Ranhola Page No. 61 of 61