Criminal Misc. No.M.5692 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.M.5692 of 2011 Date of decision 26 .4.2011. Dr.Sandeep Sachdeva ...... Petitioner. versus State of Haryana ...... Respondent. Present : Mr. J.S.Bedi, Advocate for the petitioner. Mr. Amandeep Singh, AAG, Haryana. Criminal Misc. No.M.6542 of 2011 Gian Prakash Saxena ...... Petitioner. versus State of Haryana ...... Respondent. Present : Mr. Karan Nehra, Advocate for the petitioner. Mr. Amandeep Singh, AAG, Haryana. Criminal Misc. No.M.5692 of 2011 2 CORAM :- HON'BLE MR.JUSTICE K.C.PURI. K.C.PURI, J. By this common order, I intend to dispose of Criminal Misc. No.M.5692 of 2011 filed by Dr.Sandeep Sachdeva and Criminal Misc. No.M.6542 of 2011 filed by Gian Prakash Saxena for grant of regular bail. Since both these petitions have arisen out of the same FIR and incident, therefore, these are taken up together for disposal. For convenience, facts are being taken from Criminal Misc. No.M.5692 of 2011. As per allegation of the prosecution, Superintendent, State Care & Protection Home (Girls), Karnal sent letter dated 29.1.2011 to Superintendent of Police, Karnal informing that six inhabitants were shifted to Mata Parkash Kaur Centre Karnal by Deputy Commissioner, Karnal vide letter dated 24.7.2007. As per letter dated 27.9.2007 they were to be shifted to Nari Niketan Karnal in the vacation. Prosecutrix and Geeta were shifted to Nari Niketan on 7.1.2011. The prosecutrix on 24.1.2011 told the employees/attendant/Supervisor by gestures that she was subjected to rape and she became pregnant and abortion was got done by attendant of Mata Parkash Kaur Center. Previously, she was subjected to ultra sound where pregnancy of 25 weeks was found but on 29.1.2011 there was no pregnancy. The rape was committed by Chowkidar of Mata Parkash Kaur Trust against her consent. Otherwise also, the prosecutrix is minor. During investigation, it is revealed that prosecutrix was taken to Government Hospital on 22.10.2010 for ultra sound. As per disclosure statement made by accused Asha, prosecutrix was taken to a hospital of Dr. Criminal Misc. No.M.5692 of 2011 3 Sandeep Sachdeva at Sector 12, Karnal. Dr.Sachdeva met her and demanded `.14,000/- for the abortion. It is further alleged that Asha paid `.13,000/- to Dr. Sachdeva and Dr.Sachdeva called his mother Dr.Kamlesh Sachdeva, who conducted abortion on the prosecutrix, who happened to be minor, deaf and dumb. Accused Asha further made disclosure statement that abortion was got conducted at hospital of Dr.Sachdeva at Karnal at the instance of officiating Director of Mata Prakash Kaur Society Regd. Learned counsel for petitioner Dr.Sachdeva has submitted that in the initial version of the prosecution given by the main accused-Ajay, the abortion has been got conducted at Iqbal Hospital, Ludhiana and main accused offered to identify the said hospital. However, later on the prosecution has changed the stand that abortion has been conducted at the hospital of the petitioner Dr.Sandeep Sachdeva. It is submitted that six months pregnancy is not possible to be terminated within 5 to 6 hours as alleged by the prosecution. The demarcation by the co-accused in respect of hospital of Dr.Sandeep Sachdeva is immaterial. Accordingly to Annexure P- 3, the prosecutrix has simply pointed out towards the hospital but has refused to make demarcation in respect of the hospital of the accused- petitioner. The accused is in custody since 4th February 2011. The trial is not likely to be concluded at an early date. So, prayer has been made for grant of bail. So far as co-accused Gian Parkash Saxena is concerned, it has been submitted that except the confessional statement of Asha, there is no evidence against him that he told Asha to get the abortion of the prosecutrix done at Sachdeva Hospital, Karnal. He has further contended that he is Criminal Misc. No.M.5692 of 2011 4 senior officer lodged in the jail since 3.2.2011 and his six months service is left for his retirement. The abortion has taken place after 3.00p.m., when he has already left the office. So, prayer has been made for grant of bail. I have carefully considered the submissions made by counsel for the petitioners-accused and have gone through the records of the case. The prosecutrix in this case is deaf and dumb besides being minor. Her statement under Section 164 Cr.P.C. with the help of their deaf and dumb teacher by gestures was recorded and according to her testimony she was subjected to rape at the hands of Ajay alias Happy son of Ram Nath Chowkidar of Mata Parkash Kaur Centre, Karnal. At the initial stage, disclosure statement of main accused Ajay alias Happy was recorded. According to him, he got conducted the abortion on the prosecutrix from Iqbal Hospital, Ludhiana and he has the exclusive knowledge. Press statement was made by the Senior Superintendent of Police. According to the prosecution, later on Ajay accused made a statement that he has made a wrong statement regarding Iqbal Hospital at Ludhiana in fact abortion was got conducted from Sachdeva Hospital, Karnal. So far as accused Gian Parkash Saxena is concerned, his name cropped up on the disclosure statement made by Asha co-accused. The admissibility of the same has to be adjudged at the later stage of trial. There is no statement of prosecutrix by gestures against said accused. So far as Dr.Sandeep Sachdeva is concerned, the allegations as per disclosure statement of Asha co-accused is that he has demanded `14,000/- for abortion and `.13,000/- was paid to him and the actual Criminal Misc. No.M.5692 of 2011 5 abortion was conducted by mother of Dr.Sandeep Sachdeva. The validity of that evidence is to be adjudged during the course of trial. Both the accused are stated to be in custody since first week of February 2011. Accused has relied upon demarcation statement Annexure P-3 and according to which prosecutrix was taken to Sachdeva Hospital where she was aborted. She cried and stood on the gate of hospital but refused to make the demarcation. According to Section 312 of the Indian Penal Code, whosoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both ; and if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine. Section 313 of the IPC deals with causing miscarriage without woman's consent. As per statement of prosecutrix recorded by gestures, Asha accused has taken her for abortion in a hospital. Prosecutrix has described Asha a good girl. Whether the ingredient of offence under Section 312 IPC or 313 IPC are made out is yet to be determined during the course of trial. The involvement of both the accused/petitioners is to be proved during the course of trial. So, without commenting on the merits of the same, in my view it is a fit case where both of them are entitled for concession of bail. Criminal Misc. No.M.5692 of 2011 6 So, both the petitions are allowed. The petitioners are ordered to be released on bail to the satisfaction of the trial Court. ( K.C.PURI ) JUDGE April 26, 2011 sv