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2012 DIGILAW 803 (PNJ)

Malkiat Kaur v. State of Panjab

2012-06-11

L.N.MITTAL

body2012
JUDGMENT Mr. L.N. Mittal, J.: (Oral) - Accused Malkiat Kaur has filed this criminal revision petition assailing her conviction and sentence ordered by both the Courts below. 2. Petitioner along with co-accused Lakhbir Kaur, Kuldeep Singh and Satish Kumar was tried under Sections 312 and 313 Indian Penal Code (IPC) and Sections 4 and 5(2) of the Medical Termination of Pregnancy Act, 1971 (in short, the Act) inter alia on the allegations that on receipt of secret information, raid was conducted on 05.04.2003 at the house of petitioner- Malkiat Kaur by Dr. A. S. Bhullar, Senior Medical Officer, Civil Hospital, Amloh-cum-Sub-Divisional Appropriate Authority along with staff nurse Mohinder Kaur and Class IV employees Bhagat Singh etc. and a public witness Om Parkash. It was found that the petitioner-an untrained Midwife had conducted abortion of Lakhbir Kaur. 3. Learned Sub-Divisional Judicial Magistrate, Amloh vide judgment dated 20.05.2011 convicted the petitioner under Section 312 IPC and Section 5(3) of the Act and also convicted co-accused Lakhbir Kaur, Satish Kumar and Kuldeep Singh for various offences and vide order of even date, awarded sentence to the convicts. The petitioner was sentenced to undergo rigorous imprisonment for two years under Section 5(3) of the Act and rigorous imprisonment for six months under Section 312 IPC. Both the sentences were ordered to run concurrently. Appeals preferred by petitioner and co-accused Lakhbir Kaur and Kuldeep Singh have been dismissed by learned Additional Sessions Judge, Fategarh Sahib. Vide judgment dated 26.04.2012 except that petitioner’s co-accused Lakhbir Kaur and Kuldeep Singh have been ordered to be released on probation. . Feeling aggrieved, Malkiat Kaur convict has filed this revision petition. 4. I have heard learned counsel for the petitioner and perused the case file. 5. Counsel for the petitioner vehemently contended that petitioner’s daughter-in-law Bholi was taken to Civil Hospital, Amloh on 09.04.2003 for checkup and delivery but Dr. A. S. Bhullar told that there was no arrangement for delivery at the hospital and deliveries were being conducted by Mohinder Kaur, Staff Nurse at her residence and accordingly Bholi was taken to the residence of Mohinder Kaur, who administered six injections simultaneously to Bholi who consequently became unconscious. Mohinder Kaur delivered child with her hand without using any instruments and resultantly Bholi died at the spot whereas Mohinder Kaur told that Bholi was only unconscious. Mohinder Kaur delivered child with her hand without using any instruments and resultantly Bholi died at the spot whereas Mohinder Kaur told that Bholi was only unconscious. It was thus contended that petitioner has been falsely implicated on account of said incident. 6. I have carefully considered the aforesaid contention but the same cannot be accepted because raid at the house of petitioner was conducted on 05.04.2003 whereas the aforesaid incident cited by counsel for the petitioner, took place on 09.04.2003 i.e. 4 days after the occurrence of the present case. Consequently alleged incident dated 09.04.2003 could not be the ground for false implication of the petitioner in the instant case because raid had been conducted four days earlier on 05.04.2003 and report had also been made accordingly. 7. Counsel for the petitioner also contended that Om Parkash nonofficial witness has not been examined as witness. However, merely on this ground, the petitioner cannot be acquitted when she was caught red-handed in the raid and other witnesses examined by the prosecution have supported the prosecution case. 8. Contention of counsel for the petitioner that FIR was registered nineteen days after the raid does not help the petitioner because report of the raid was made on the same day and mere delay in lodging the FIR cannot be said to be fatal to the prosecution in peculiar facts and circumstances of the instant case. 9. Both the courts below have fully analyzed the evidence and come to concurrent finding regarding guilt of the petitioner being proved beyond reasonable doubt. The said finding is not shown to be suffering from any illegality, perversity or jurisdictional error nor based on misreading or misappreciation of evidence. On the contrary, there is no ground to discard the testimony of Dr. A. S. Bhullar who was heading the raiding party. Other prosecution evidence further corroborates the testimony of Dr. A. S. Bhuller. Consequently petitioner has been rightly found guilty of the above mentioned offences. Conviction of the petitioner, therefore, does not warrant any interference in exercise of revisional jurisdiction. 10. As regards quantum of sentence, petitioner has been awarded minimum sentence of imprisonment for two years under Section 5(3) of the act. There is no discretion with the Court to reduce the sentence from the minimum prescribed by the statute. Conviction of the petitioner, therefore, does not warrant any interference in exercise of revisional jurisdiction. 10. As regards quantum of sentence, petitioner has been awarded minimum sentence of imprisonment for two years under Section 5(3) of the act. There is no discretion with the Court to reduce the sentence from the minimum prescribed by the statute. Consequently even regarding quantum of sentence, no relief can be granted to the petitioner because of the minimum sentence awarded to her by the Courts below. 11. For the reasons aforesaid, I find no merit in this revision petition, which is accordingly dismissed in limine.