IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPEAL NO. 656 OF 1989 APPEAL NO. 656 OF 1989 APPEAL NO. 656 OF 1989 Aruna Harishchandra Patil, ) residing at Sukhashanti ) Nursing Home, Bhyander, ) Dist.Thane at present in Jail. ) ... Appellant. Versus. The State of Maharashtra. ) ... Respondent. Shri P.P.Hudlikar for the Appellant. Shri D.P.Adsule, A.P.P. for the Respondent. WITH WITH WITH CRIMINAL CRIMINAL CRIMINAL APPEAL NO. 49 OF 1990 APPEAL NO. 49 OF 1990 APPEAL NO. 49 OF 1990 The State of Maharashtra. ... Appellant. Versus. Aruna Harishchandra Patil, ) aged 40, residing at ) Sukhashanti Nursing Home, ) Bhayander, Dist.Thane. ) ... Respondent. Shri D.P.Adsule, A.P.P. for the Appellant. Shri P.P.Hudlikar for the Respondent. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : 27th & 28th : 27th & 28th : 27th & 28th November, November, November, 2006. 2006. 2006. ORAL JUDGMENT. 1. This is a case where the trial court has held : 2 : 2 : 2 : that the Accused No.1 practiced as a gynaecologist though she did not possess any qualification and though she was not registered as a medical practitioner under the Maharashtra Medical Practitioners Act, 1961. Heard the learned Counsel appearing for the Appellant in Appeal No.656 of 1989 and the learned A.P.P. for the State. The Appellant in Appeal No.656 of 1989 is the original Accused No.1 Aruna Harishchandra Patil (hereinafter referred to as the Accsed No.1 or the Appellant). She has been convicted for the offences punishable under section 419 and 420 of the Indian Penal Code and for the offence under section 33 of the Maharashtra Medical Practitioners Act, 1961. She has been acquitted of offences alleged under sections 468, 465, 471 and 308 of the Indian Penal Code. For the offence under section 419 of the Penal Code, the Appellant has been sentenced to undergo R.I. for 3 years and to pay a fine of Rs.5000/-. In default of payment of fine, she has been directed to undergo further R.I. for six months. For the offence under section 420 of the Penal Code, the Appellant is sentenced to undergo R.I. for 7 years and to pay a fine of Rs.10,000/- and in default of payment of fine, she has been directed to undergo R.I. for one year. For offence under section 33 of the Maharashtra Medical Practitioners Act, 1961 she has been sentenced to pay fine of Rs.400/- and in default, to undergo simple : 3 : 3 : 3 : imprisonment for two months. The substantive sentences are directed to run separately. The sentences in default of payment of fine are also to run separately. Appeal No.65 of 1990 is preferred by the accused No.1 against order of conviction. The Appeal No.49 of 1990 is by the State against order of acquittal for offences punishable under sections 468, 465, 471 and 308 of the Indian Penal Code. I have heard the learned A.P.P. in support of the said Appeal and the learned Counsel for the Accused No.1, who is the Respondent in the Appeal against acquittal. 2. Briefly stated the case of the prosecution is that though Accused No.1 was running a nursing home known as Sukhashanti Nursing Home at Bhayander from 1984 and though she was claiming to be a qualified Medical Practitioner holding MBBS and MD degrees and a Diploma in Gynaecology and Obstetrics, she was in fact possessing no such qualifications. According to the case of the prosecution, the Accused No.1 was performing surgeries. The Accused No.2 was employed as a Mid-wife in the said Nursing Home of the Accused No.1 and the case of the prosecution is that Accused No.2 used to assist Accused No.1 in the Nursing Home. The learned trial Judge has acquitted the Accused No.2 of all offences which were alleged against her and there is no appeal against the acquittal preferred by the State : 4 : 4 : 4 : Government in so far as the acquittal of the Accused No.2 is concerned. P.W.1 Meenakshi Sadashiv Naik was at the relevant time a lady Police Constable attached to the Local Crime Branch, Thane. At that time P.W.1 was pregnant. At the instance of P.I. Zarekar (P.W.6) she visited the Nursing Home of the Accused No.1 on 8th October 1986. She was examined by the Accused No.1 and she prescribed medicines to her. P.W.1 paid Rs.50/- as professional fees to the Accused No.1. P.W.1 was asked to visit the Nursing Home on the next day by the Accused No.1. Accordingly P.W.1 visited the Nursing Home on the next day. The Accused No.1 after examining her advised her to get admitted in the Nursing Home as it was necessary to administer saline to her. The Accused No.1 also prescribed medicine to P.W.1. After her second visit, P.W.1 straight away proceeded to Bhayander Police Station and met P.I. Zarekar. Her statement was recorded by P.I. Zarekar which was treated as F.I.R. Investigation was carried out by P.I. Zarekar (P.W.6). 3. It is the case of the prosecution that the Accused No.1 obtained a loan of Rs.3,60,000/- from the Syndicate Bank, Ghatkopar Branch, Mumbai. On 30th April 1985, the Accused No.1 submitted an application for grant of loan vide Exh.20. Along with the said application, she submitted a letter which is at Exh.21. Along with the said letter, the Accused No.1 submitted a : 5 : 5 : 5 : xerox copy of the registration certificate issued by the Maharashtra Medical Council in the name of Kum.Sarita Sayaji Rane on 4th November 1972 bearing registration No.28964. She also forwarded a xerox copy of the certificate of registration (Exhibit 23) dated 30th January 1975 purportedly issued by the Maharashtra Medical Council, Bombay, in the name of Idgunji Anjani Ganesh. She also forwarded a xerox copy of degree certificate of the decree (Exhibit 24) of Doctor of Medicine issued by the Chancellor of the University of Bombay in the name of Anjani Ganesh Idgunji. 4. According to the prosecution case, the Registrar of Maharashtra Medical Council informed the Investigating Officer that the Accused No.1 was not enrolled as a Medical Practitioner with the said Council. The Registrar informed that Dr.Anjani Ganesh Idgunji was enrolled with the Medical Council as a Medical Practitioner and the said Dr.Anjani is not Accused No.1. It was also stated that after her marriage, the said Dr.Anjani is known as Sau Anjali Vivek Nirogi. As per the record of the Maharashtra Medical Council, the registration number 28964 was assigned to the registration in the name of Dr.(Miss) Telang Nalini Govindrao who passed MBBS Examination from Karnataka University. The said Miss Telang married in the year 1981 and after her marriage, her name is : 6 : 6 : 6 : changed to Sau Uma Yeshwant Rane. According to the case of the prosecution, the certificate of registration (Exh.36 and Exh.22) in the name of Sarita Sayaji Rane produced by the Accused No.1 was not issued by the Maharashtra Medical Council. 5. The prosecution examined various prosecution witnesses. In all the prosecution examined 9 witnesses including the Investigating Officer. The prosecution also led documentary evidence. 6. P.W.1 Mrs.Meenakshi Naik was a Police Constable working in the local Crime Branch, Thane in the year 1986. She stated that on 8th October 1986 P.I. Zarekar (P.W.6) of Bhayandar Police Station called her and she was ordered to visit the Nursing Home of Accused No.1. According to the said witness, she was pregnant at the relevant time. She visited the said Nursing Home for her check up. She stated that the Accused No.1 was present in the Nursing Home and there were two women patients admitted in the Nursing Home at that time. The Accused No.2 was also present in the Nursing Home at that time. P.W.1 met Accused No.1 in her cabin. The Accused No.1 examined her in presence of Accused No.2. Accused No.1 opined that P.W.1 was suffering from weakness and therefore, she prescribed tablets. When asked by the P.W.1, the Accused No.1 quoted her fees and : 7 : 7 : 7 : P.W.1 paid to her a sum of Rs.50/- by way of professional fees. P.W.1 instructed her to visit the Nursing Home next day. Accordingly P.W.1 visited the Nursing Home at 10.00 a.m. on the next day. She stated that she also noticed that there were two women patients admitted in the Nursing Home of the Accused No.1. P.W.1 stated that she was examined by the Accused No.1. She was advised by the Accused No.1 to get herself admitted in the Nursing Home as according to Accused No.1 it was necessary to administer saline. On that day Accused No.1 prescribed some medicines to P.W.1. From the Nursing Home P.W.1 straight away came to the Bhayander Police Station and disclosed the happenings to P.I. Zarekar. Along with P.I. Zarekar, P.W.1 again visited the Nursing Home in the afternoon at about 12.30 p.m. The medicines in the Nursing Home were seized. F.I.R. of P.W.1 (Exh.12) was thereafter recorded by the Bhayandar Police Station. P.W.1 produced the prescription (Exh.13) issued to her by the Accused No.1. 7. In the cross-examination, P.W.1 stated that in the morning at about 8.00 a.m. on 8th October 1986, she was told to visit Bhayander Police Station. She visited Bhayandar Police Station by 9.00 a.m. and she reached the Nursing Home of the Accused No.1 at about 11.00 a.m. She stated that the amount of Rs.50/- paid to the Accused No.1 was her amount and it was not the amount : 8 : 8 : 8 : provided by P.I. Zarekar. She admitted that she did not purchase any medicines prescribed by Accused No.1. She stated that on 9th October 1986, no prescription was given by the Accused No.1. She stated that she did not tell Accused No.1 on 9th October 1986 that she had not taken the medicine prescribed by the Accused No.1 on the earlier day. She stated that even the Accused No.1 did not ask her whether she had taken the medicine prescribed by her. 8. P.W.2 is one Phulubai Vijay Maya. She identified the Accused No.1 before the Court. She stated that she had taken medicines from her and she delivered a female child in the Nursing Home of the Accused No.1. She stated that her said daughter was well. The said witness was not cross-examined by the Advocate for the Accused No.1. 9. P.W.3 Shri Shashikant Achutrao Gadre was the Registrar of Maharashtra Medical Council from 2nd April 1980 to 15th December 1986. He stated that on 15th May 1986, he received a letter from the P.S.I. of Bhayandar Police Station to make enquiry about the Accused No.1. He produced the original letter at Exh.17. He stated that every Medical Practitioner has to enroll himself with the Medical Council. The Medical Council has maintained a register of medical practitioners. He : 9 : 9 : 9 : stated that after verifying from the register, he found that the Accused No.1 was not enrolled as a Medical Practitioner with the Medical Concil. Accordingly, he informed the Bhayandar Police Station. The reply issued by him (Exh.18) to the Police Station was proved in his evidence. He stated in examination-in-chief that Dr.Anjani Ganesh Idgunji was enrolled with the Medical Council. He stated that he also informed the address of Dr.Anjani to the Police Station. He stated that office of the Medical Council had not received any application from the Accused No.1 to enroll herself as a Medical Practitioner. In the cross-examination, he was shown a certificate of registration issued in the name of Sarita Sayaji Rane bearing No.28964. He stated after seeing the said certificate that Sarita Sayaji Rane was registered with the Maharashtra Medical Council and her registration number is 28964. A xerox copy of the said registration certificate was shown to him. He stated that the xerox copy was a copy of the said original. The xerox copy was exhibited as Exh.22. 10. P.W.4 Pillar Santor Sukumar was working as the Branch Manager in Syndicate Bank, Ghatkopar Branch, Mumbai during the year 1984-85. He stated that he knew the Accused No.1. According to him on 30th April 1985, the Accused No.1 had visited his branch and had asked for a loan in the sum of Rs.3,60,000/-. He produced in : 10 : 10 : 10 : evidence the original loan application (Exhibit 20) submitted by the Accused No.1. He stated that the loan application bears the signature of Accused No.1. He stated that necessary particulars were produced by the Accused No.1 along with her a letter (Exh.21). He stated that along with Exh.21, the Accused No.1 produced certificates in the name of Anjani Ganesh Idgunji. He stated that when a query was made to the Accused No.1 she clarified that Anjani Ganesh Idgunji was her maiden name. A limited cross examination of the said witness was made by the Accused No.1. P.W.4 stated that he does not remember whether his statement was recorded by the Police. He stated that he did not doubt though the Accused No.1 gave two maiden names and two different marital names. 11. P.W.5 Dr.Anjali Vivek Nirogi stated that she passed her MBBS Degree in the year 1975 and she did her MD in March 1978. Her maiden name was Anjani Ganesh Idgunji. She stated that she used to attend a Polyclinic at Prabhadevi and after about four years she joined a Polyclinic at Mahim. She never practiced at Bhayandar. She never obtained any loan from Syndicate Bank. She identified the Accused No.1 who was present before the Court by stating that the Accused No.1 was practicing in Nadkarni Polyclinic as a Gynaecologist and she used to attend the said Polyclinic. The Advocate : 11 : 11 : 11 : for the Accused No.1 declined to cross-examine the said witness. 12. P.W.6 Shankar Gangaram Zarekar stated that he had asked P.W.1 Meenakshi Naik to visit the Nursing Home of the Accused No.1 with the object of verifying whether the Accused No.1 was practicing as a Medical Practitioner. He stated that after visiting her Nursing Home, P.W.1 informed him that Accused No.1 had examined her. He stated that P.W.1 visited the Nursing Home of the Accused No.1 on the next day and after returning from the Nursing Home, she came to the Police Station and lodged the complaint. He stated that he referred the matter to the Maharashtra Medical Council. In the cross-examination, the witness stated that on 8th October 1986, the Complainant had been in to Police Station but she did not meet him. He did not enquire whether Aruna Harishchandra Patil was the maiden name or the marital name of Accused No.1 and whether she was known by that name. He stated that he inquired with the Maharashtra Medical Council. He also inquired with the School which the Accused No.1 attended at Ghatkopar. However, he did not get any information. He stated that he did not record the statements of the concerned persons in that behalf. He admitted that he did enquire with the Accused No.1 about her registration certificate. He also inquired with the Accused No.1 : 12 : 12 : 12 : whether she had married and she told him that she was married. He stated that he does not know whether one Amar Sayaji Rane aged about 9 years was the son of Accused No.1. P.W.6 was recalled for further examination-in-chief. He stated that the Accused Nos.1 and 2 were arrested on 9th October 1986. He also recorded the statement of Satish Ganesh Idgunji. He stated that on 15th May, 1989, he wrote a letter to the Registrar, Maharashtra Medical Council. He stated that he recorded the statement of Dr.Krishna Chimote as well as Dr.Uma Yeshwant Rane. In the cross-examination he admitted that the statement of Dr.Uma Yeshwant Rane was recorded at 11.30 p.m. 13. P.W.7 Achyut Kashinath Karekar was holding the post of the Registrar, Maharashtra Medical Council with effect from 16th August 1988. He stated that all medical practitioners practising in allopathy are required to register with the Maharashtra Medical Council. He stated that after registration, the Maharashtra Medical Council issues a registration certificate to the concerned Medical Practitioner and on such certificate issued by the Maharashtra Medical Council, the seal of the Maharashtra Medical Council is embossed. He stated that one Shri M.V.Bagul was the Registrar of the Maharashtra Medical Council prior to him. He was shown the registration certificate marked : 13 : 13 : 13 : Exh.36 which was earlier shown to P.W.3 Shri Shashikant Gadre in his cross-examination. After looking at the certificate Exh.36, he stated that the certificate was not issued by the Council and as per the office record, the certificate bearing the said registration number has been issued to one Dr.(Miss) Telang Nalini Govindrao. He stated that the seal on the certificate at Exhibit 36 was not that of the Maharashtra Medical Council. He stated that Exh.36 was not the registration certificate issued by the Council. In the cross examination, he has admitted that Shri Bagul was the Registrar of Maharashtra Medical Council in the year 1972. He produced the original application of Dr. Miss Telang Nalini Govindrao submitted to the Council for registration. He stated that he was not aware as regards any rule requiring mentioning of the surname first and then the name of the Applicant in the registration certificate. He stated that he was unable to tell whether the signature on the Certificate at Exh.36 was that of Shri M.V.Bagul. He was unable to point out the rule which requires the seal of the Medical Council to be embossed on the registration certificate. He expressed inability to state whether he had an occasion to see the signature of Shri M.V.Bagul. He denied the correctness of the suggestion that he falsely stated that Exh.36 is not the original certificate. : 14 : 14 : 14 : 14. P.W.8 Dr.Krishna Sudhir Chimote stated that she had obtained MBBS and a diploma in Anaesthesiology. She produced her certificate of registration issued by the Maharashtra Medical Council. She stated that from May 1985 she was residing at Bhayandar. She stated that she knew the Accused No.1 as Dr.Aruna Patil, M.D., D.G.O. She stated that at the Sukhshanti Nursing Home at Bhayander, there is a board displayed in the name of the Accused No.1. She stated that on number of occasions she had visited the hospital of Accused No.1 for giving anaesthesia. She stated that the Accused No.1 herself performed surgery. She stated that she was present when Accused No.1 performed operations. She opined that if a layman performs operation, it is very fatal. 15. P.W.9 Dr.Uma Yeshwant Rane stated that her maiden name was Nalini Govindrao Telang and she passed MBBS in the year 1972 from the Karnataka University. She stated that she has registered herself with the Maharashtra Medical Council and her registration number was 28964. She produced her original registration certificate at Exh.42. She stated that she does not know the Accused No.1 or one Sarita Sayaji Rane. In the cross- examination she admitted that she was not in a position to identify the signature of the Registrar on the certificate. : 15 : 15 : 15 : 16. Shri Hudlikar, the learned Counsel appearing for the Accused No.1 has made extensive submissions. He submitted that no offence has been proved against the Accused No.1. He submitted that it is not established by the prosecution that the Accused No.1 was not a registered medical practitioner. He submitted that the certificate at Exh.36 is a genuine certificate. He submitted that the said certificate has been duly signed by Shri M.V.Bagul who was admittedly the Registrar of Maharashtra Medical Council at the relevant time. He submitted that the certificate itself discloses that the Accused No.1 was a registered medical practitioner. Inviting my attention to the evidence of P.W.1, he pointed out that according to the version of P.W.1 after visiting the Nursing Home of Accused No.1 on 9th October 1986, she visited the Bhayandar Police Station. Around 12.30 in the afternoon, P.I. Zarekar along with the said witness visited the Nursing Home of Accused No.1. At that time medicines in the Nursing Home were seized. He pointed out that the witness has stated that after the seizure, her F.I.R. was recorded. He submitted that thus the investigation commenced even before recording of the F.I.R. and therefore, the investigation and the consequential actions are vitiated. He submitted that the seizure of various goods under panchanama at Exh.10 becomes illegal. He : 16 : 16 : 16 : submitted that the prosecution has not examined any patient so as to prove that the Accused No.1 had deceived any one and that any loss or injury was caused to any one due to any act on the part of the Accused No.1. He submitted that there is enough evidence on record to show that the Accused No.1 was a registered medical practitioner and was practicing as such. He submitted that no case is made out either under section 419 or under section 420 of the Indian Penal Code. He submitted that as the Accused No.1 was possessing registration, no offence under the Maharashtra Medical Practitioners Act, 1961 has been made out. He has invited my attention to the several discrepancies and inconsistencies in the prosecution case. He submitted that the trial court ought to have passed an order of acquittal of the Accused No.1. 17. Without prejudice to the aforesaid submissions, he invited my attention to the fact that the Accused No.1 was acquitted of the offences punishable under sections 468, 465, 471 and 308 of the Indian Penal Code. He submitted that considering the fact that the said offences are not proved by the prosecution, the finding of guilt for offences under sections 419 and 420 of the Indian Penal Code was inconsistent with the finding of innocence. He submitted that the finding of the learned Judge is that the prosecution has failed to establish : 17 : 17 : 17 : that the Accused No.1 forged the MBBS degree certificate of Dr.Anajani Ganesh Idgunji and has dishonestly used the same. 18. Lastly Shri Hudlikar submitted that the Accused No.1 has not done any harm to any patient. He submitted that the Accused No.1 has repaid the entire amount of loan advanced to her by the Syndicate Bank with interest. He submitted that it is an admitted position that while practicing as a medical practitioner, the Accused No.1 has not caused harm to any patient. Without prejudice to all his earlier submissions, he submitted that considering the present age of the Accused No.1, a lenient view is required to be taken. He submitted that after the registration of the F.I.R., the Accused No.1 has stopped all her activities. 19. The learned A.P.P supported the impugned Judgment and order by pointing out the evidence on record. In support of the Appeal against acquittal, he submitted that offences under section 468, 465, 471 and 308 of the Indian Penal Code were duly established by the prosecution. The learned Counsel for the Accused No.1 submitted that in an appeal against acquittal, no interference is called for as the order of acquittal passed the learned trial Judge is consistent with the evidence on record. : 18 : 18 : 18 : 20. I have carefully considered the submissions made by the learned Counsel appearing for the parties. I have also perused the notes of evidence, exhibited documents and the statement of Accused No.1 recorded under section 313 of the Code of Criminal Procedure, 1973. I have also perused the impugned judgment and order. 21. Turning to the evidence of P.W.1 it must be noted here that she has not stated in her