HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL R.C. NOs.17 & 19 OF 2005 Date:19.03.2010 CRIMINAL R.C. NO.17 OF 2005 Between: Dr.Kolli Rama Devi ……Petitioner/Accused/Appellant And: State of A.P., rep. by PP ……Respondent. CRIMINAL R.C. NO.19 OF 2005 Between: Parasi Venkata Sriramachandra Murthy ……Accused No.3/Appellant/Petitioner And: The State of A.P., rep. by PP …… Respondent. HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL R.C. NOs.17 & 19 OF 2005 COMMON ORDER: Criminal Revision Case No.17 of 2005 is filed by A-1. Criminal Revision Case No.19 of 2005 is filed by A-3. A-1 and A-2 are wife and husband and they are running hospital under name and style of Asha Jyothi Fertility Centre (Asha Jyothi Santana Safalya Kendram) at Suryaraopet of Vijayawada. A-3 who is a Radiologist is running Alfa Scan Centre at Suryaraopet, Vijayawada. Alleging that A-1 and to A-2 were cheating issueless ladies by attracting them with advertisements through media for begetting babies, A-1 and A-2 were collecting huge monies for treatment and A-3 was deceiving issueless ladies with false scanning reports as if there was pregnant. After trial, the IV Metropolitan Magistrate, Vijayawada by judgment dated 31.03.2003 in C.C.No.159 of 2001 convicted A-1 and A-3 for offence under Section 420 IPC and sentenced them to Simple Imprisonment for two years and awarded compensation of Rs.1,00,000/- each to P.W.8. On appeal, in Criminal Appeal Nos.113 and 114 of 2003, the Sessions Judge, Mahila Court, Vijayawada by the common judgment dated 07.01.2005 confirmed convictions and sentences against A-1 and A-3. Even though several victims were examined by the prosecution, none of them except P.Ws.8 and 9 supported the prosecution version. Both the courts below based their conclusions on evidence of P.Ws.8 and 9. P.W.9 is husband of P.W.8. P.W-9’s evidence may not be of much help on either side. It is contended by the Senior Counsel appearing for A-1 who is the petitioner in Criminal R.C.No.17 of 2005 that the courts below failed to appreciate the evidence of P.W.8 in the light of evidence of P.W.14 and that it resulted in miscarriage of justice. It has to be seen whether there is any misreading of evidence resulting in miscarriage of justice in this case. Originally, P.W.8 consulted A-1 and A-2 in March, 2000 and showed previous medical history and records relating to her. It is P.W- 8’s evidence that A-1 informed her that there is no possibility to get pregnancy as tubes are closed, and that A-1 assured that she will get pregnancy definitely if they give I.V.F treatment, and also promised to see that twins are born. On 02.07.2000 P.W.8 was admitted in the hospital of A-1 and A-2. On 03.07.2000 and 04.07.2000 consent forms and other formalities covered by Exs.D-2 to D-4 were obtained by the hospital from P.Ws.8 and 9. On 04.07.2000 I.V.F treatment was started. On 06.07.2000 there was implantation during the course of treatment. On 26.07.2000, pregnancy of P.W.8 was confirmed after urine test. On 09.08.2000, after ultra sound scanning, A-3 gave report confirming pregnancy. On 04.09.2000 P.W.8 was discharged from the hospital. Subsequently, when P.W.8 consulted P.W.14 who is Assistant Professor in Gynecology in Siddhartha Medical College, after examination, P.W.14 gave Ex.P-13 certificate that P.W.8 was not pregnanct at the time of her examination. From the above evidence, it is sought to be contended by the prosecution that P.W.8 was cheated by A-1 and A-3 by false promise and by false reports of pregnancy. There is no dispute that in cross-examination, P.W.8 stated that after twenty days of discharging her from A-1’s hospital, she found bleeding discharge for first time in her house with mud coloured bleeding. P.W-8 admits that her husband used to bring medicine, from A-1 after informing her condition to A-1 and that she also consulted A-1. She admits that Mumbai Doctors by names Rushi Kesh Pai, Poulat Kandu, Budesh Kamat of Mumbai and A-1 have given I.V.F treatment to her and that after giving treatment the above Embryologists went away to Mumbai and that after five months of the same, she observed bleeding which was mud coloured at her house. She says that when she consulted Gudivada Diagnostic Centre to identify whether she got pregnancy or not, it was confirmed that she had no pregnancy. She says that she found news from news paper about A-1 being arrested. It is only thereafter, P.W.8 approached the police. Both the courts below brushed aside cross-examination of P.W.8 on the ground that the accused made P.W.8 to give a go-bye to her version in examination-in- chief by adopting foul means. No doubt, cross-examination of P.W.8 was not made on the same date when P.W.8 was examined-in-chief. From that circumstances alone, the lower court should not have jumped to the conclusion that there was tampering of P.W.8 by the accused after her examination-in-chief in the trial court. At this stage, evidence of P.W.14 is very much relevant. P.W.14 in examination-in-chief itself stated that milk secretion was present in P.W.8’s breasts. In cross- examination, she stated that breasts were well developed and milk secretion arises in second trimesters out of three trimesters of the pregnancy. She says that there is possibility of milk secretion following intra-uterine death of fetus. She further says that in general conditions, the dark colour tarry which is mud colour bleeding is one of the sign or indications of missed abortion. She says that breast changes start from third month of pregnancy. Evidence of P.W.8 that she had mud coloured bleeding subsequent to her discharge from A-1’s hospital when she was in her house in her village, coupled with symptoms found by P.W.14 during her examination of P.W.8 undoubtedly reveal that even though there was pregnancy after I.V.F treatment, which pregnancy was confirmed by A-3 after ultra sound scanning, ultimately there was miscarriage of pregnancy after P.W.8 was discharged from A-1’s hospital. Both the courts below did not read entire evidence of P.W.8, both examination-in-chief as well as cross-examination coupled with evidence of P.W.14 and it resulted in miscarriage of justice in this case. Simply because huge amounts were collected from P.W.8, it cannot be said that A-1 obtained the said amounts in collusion with A-3 by giving false promises and false reports. Evidence of P.Ws.8 and 14 undoubtedly reveal that there was fructification of pregnancy for P.W.8 in A-1’s hospital after undergoing I.V.F treatment, but it resulted in abortion after P.W.8 went to her native place. It may be fact that A-1 charged huge amount from P.Ws.8 and 9 since three Embryologists were summoned from Mumbai for giving treatment to P.W.8 along with A-1, collection of money in A-1’s hospital is not the criteria in this case at all. The above evidence on record undoubtedly reveal that there was no false representation on the part of A-1 or A-3 to P.W.8 and no money was collected from P.W.8 or P.W.9 by making false representations. The money was already collected from P.Ws.8 and 9 even prior to starting of I.V.F treatment to P.W.8 and before A-1 summoning three Embryologists from Mumbai. This Court finds that conclusion of the courts below are not based on evidence on record and are based on surmises and conjectures, which is not permissible in law. I find that there is gross miscarriage of justice in this matter and judgments of both the courts below are not sustainable in law or on facts. In the result, both the Revision Cases are allowed setting aside convictions and sentences passed by the courts below against the petitioners/A-1 and A-3 and acquitting them. ___________________________________ SAMUDRALA GOVINDARAJULU,J. Date:19.03.2010. Gk. HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL R.C. NOs.17 & 19 OF 2005 Date:19.03.2010. Gk.