Judgment That Sent Doctor And Boyfriend To Jail For A Decade

   

In February 2003 police recovered an unclaimed body of a young woman from SMHS. Investigations revealed that she had died in a private nursing home during induced abortion. Five persons accused in the case were finally arrested for murder and conspiracy and the case was charge-sheeted. The trial concluded last week (February 2013) when Principal Sessions Judge, Srinagar Mr Mohammad Shafi Khan passed a 52-page order sending the doctor – who carried out the procedure, and deceased lady’ boyfriend, who funded the exercise, to 10 years of rigorous imprisonment. The judgment being of vital interest to the society, Kashmir Life is publishing the entire judgment.

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COURT OF PRINCIPAL SESSIONS  JUDGE SRINAGAR.
PRESENT:  MOHAMMAD SHAFI KHAN (HJS)

FILE NO.                DATE OF INST.             DATE OF DEC.
228/Session          28-11-2003                      -02-2013

State      Vs.

1. Mohd Altaf Hajam s/o Mohd Akbar Hajam
resident of Hajam Mohalla,Nowgam.
2. Ghulam Mohd Hajam S/o Mohd Akbar Hajam
3. Dr. Ghulam Nabi Bhat S/o Mohd Sultan Bhat R/o Gopal Pora.
4. Ab. Majeed Hajam S/o Ama Hajam R/o Hajam Mohalla,  Nowgam.
5.Reyaz Ahmad Dar S/o Ab. Rehman Dar R/o Baghat Barzulla.
6. Mohd Ashraf  Bhat S/o Mohd Sultan Bhat R/o Bumai Sopore.
7. Mst. Safia D/o Gh. Rasool Dar R/o Chana  Mohalla, Chattabal.

( Accused)

CASE FIR No. 10 of 2003 P/s Karan Nagar under sections 304,316,201,34, 120-B RPC.

PP for the State.
Accused with their counsel present.

BRIEF FACTS.

On 21-02-2003, CMO, SMHS, Hospital, Srinagar, informed police station Karan Nagar, about an unclaimed dead body of a young woman kept lying near the causality section of the Hospital.  A police party immediately rushed to the hospital and took the dead body into custody.  A small piece of paper with the name of a clinic namely, Jehlum Diagnostic Centre, H. S. H. Street was recovered from the possession of the dead body.   The dead body was sent for postmortem to police Hospital, Srinagar and inquest proceedings under section 174 Cr. P.C. initiated in police station Karan Nagar.  During the preliminary medical investigation, it was found that the young lady was six to seven months old pregnant.  The Jehlum Diagnostic centre was raided where from a consent form dated 19-02-2003 and other relevant material was seized.  The dead body was identified as of Mst. Rafiqa D/o Ghulam Mohd Sheikh R/o Sonwar.  After the statements of Miss Fareeda sister and Gh. Mohd Sheikh father of the deceased were recorded by the I. O., involvement of accused Mohd Altaf and his relatives was suspected.  The chit recovered from the body of the deceased contained the name of Jehlum Diagnostic centre which opened a new path for the investigation and it was suspected that an illegal abortion was done upon Mst Rafiqa at the clinic.  From the clinic some objectionable material along with the photostat copy to the consent form signed by both Mohd Altaf Hajam and the deceased was seized.  The seizure made from Jehlum  Diagnostics centre made it clear that illegal abortion was conducted on Rafiqa in the said clinic and subsequently a criminal conspiracy was hatched and the dead body of deceased who died during the course of illegal abortion, was thrown at the SMHS Hospital, Srinagar.  Evidence was also collected during the course of investigation to the effect that the deceased Mst. Rafiqa was brought to the residence of accused Mohd Ashraf Bhat in a very critical condition but subsequently the dead body of the deceased was shifted  clandestinely to SMHS Hospital so that no evidence remains against the accused.

A case FIR No. 10/03 under sections 304,312, 313,314,315,316,120-B, 201/34 RPC came to be registered in the first instance after converting the inquest proceedings under section 174 Cr. P.C. into a regular case. During the course of investigation it surfaced that accused No.3. Dr. Gh. Nabi Bhat had induced incomplete illegal abortion on Rafiqa Bano who was in the advanced stage of pregnancy and the doctor having full knowledge of the fact that it would amount to the death of the lady tried to abort the lady.  Blood sample of the accused Altaf was collected in presence of witnesses alongwith the blood sample of father of the deceased was sent to FSL Kolkata in consultation with FSL , Srinagar.

The investigation in the matter culminated in presentation of this charge sheet against the accused under sections 304, 316,120-B, 201,34 RPC as it was prima facie established on the basis of evidence collected both oral , documentary and circumstantial that accused Mohd Altaf Hajam had developed illicit relations with the deceased Rafiqa and once he came to know about the pregnancy of the deceased, he wanted abortion of the deceased.  Since the deceased was in the advances stage of pregnancy, accused No.2,4 and 7 helped him in getting the illegal abortion of the lady done. Accused Nos. 3 ands 6 conducted the illegal abortion of the deceased at the Jehlum Diagnostic Centre.  The accused No.3 Doctor Gh. Nabi Bhat knowing fully that the abortion at such advanced stage would lead to death of the deceased, conducted the illegal abortion and as per the postmortem report the cause of death was attributed to the incomplete abortion.  Thereafter she was shifted to the residence of accused No.6 and after the accused hatched a criminal conspiracy and in order to destroy all evidence against them, they brought the dead body to SMHS Hospital, Srinagar and disappeared.

Formal charge against the accused has been framed on 01-04-2004 under sections 304, 316,201,120-B/34 RPC and while pleading not guilty to the charges accused No.1. Mohd Altaf has stated that deceased Rafiqa was known to him and one day she met him in Lal chowk and he accompanied her to Dr. Gh. Nabi, accused and upon her examination by the said accused he came to know about her pregnancy.

Dr. Ghulam Nabi Bhat has in a casual manner pleaded not guilty and denied the charge.  Accused Reyaz Ahmad while pleading not guilty to the charges has stated that accused Altaf told him that a dead body was to be taken to Hospital which he did in his Maruti car alongwith two three persons who were not known to him.  Accused Mohd Ashraf Bhat has while pleading not guilty to the charges stated that he was an employee working in the clinic and the owner of the clinic is Dr. Ghulam Nabi.  The rest of the accused have also pleaded not guilty to the charges framed against them.

PROSECUTION EVIDENCE.

PW FARIDA BANOO, has stated that Rafiqa was her sister and she was working in Home Guard as a volunteer for about  2/3 years.  Accused Altaf is also known to her.  One day Altaf came to their house, posed to be the cousin of Altaf and proposed for Rafiqa.  They readily accepted the proposal but asked him to send parents for the same to which he said that the parents do not approve of the relation.  Meanwhile Rafiq was assigned the duties with Haji’s. she was also working with her.  Thereafter they were posted in Control Room.  A lady had approached them to permit Rafiq to stay with them for night who had to attend marriage of some Mymoona which they refused.    One day Rafiqa went to attend her duties but did not return and on the following day they lodged a report in the police.  They were summoned by the police to identify the dead body of Rafiqa.  The news was also published in the news paper.  Picture of Rafiqa was published in the newspaper ( EXPW 2/2).  Rafiqa did not tell her anything and she does not know whether Rafiqa wanted to marry Altaf or not.  She and Rafiqa were attending their duties separately, however, Altaf used to be in the shift of Rafiqa.  Rafiqa did not tell her any thing about Altaf.  Report was lodged in the police.

The photographs on record are of Mst. Rafiqa.  No other accused is known to her.  The lady who had approached them had not disclosed her identity but had told that she was sister of Mymoona.  On that day Rafiqa had left for her duty at 9 AM and on the following day dead body was brought at 1 PM.  Rafiqa was in civil dress i.e. Frok etc.  with pheran.  The dead body was left at SMHS Hospital.

In her cross examination the witness has stated that they were working with police for about two years and Rafiqa had joined the service 2/3 years prior to her. Both of them were posted at one place in two shifts.  They had good relation with each other.  They were six members in the family which included parents and two brothers. One of her brother is a tailor and another is a business man.  She does not remember the date of occurrence. Altaf had stayed in their house for about an hour and talked to her father who has subsequently informed them about the purpose of visit.  The deceased was not present at that time.   She was on duty.  She and Rafiqa were not attending their duties together.  She has never seen Altaf and Rafiqa together  She saw Altaf for the first time when he came to their house. She was elder to Rafiqa as such did not like that Rafiqa should get married first. She was at her home when police informed them that  they had found the dead body.  They reached control Room at 3 PM.  The dead body was in the Mortuary alongwith clothes.  The postmortem had been conducted. When Altaf came to their house, he was absent from duty for fifteen days as per Munshi.  Rafiqa was in a good condition and she would never feel about her pregnancy nor did she disclose it before her.

PW, Gh. Mohd Sheikh, has stated that he is working as Follower in police department.  His two daughters Fareeda and Rafiqa were working as Volunteers in the police.  Each of them was posted in Parimpora for 15 days.  Accused, Altaf Hajam was also working with them as a volunteer, and he was posted at Ram Munshi Bagh.  Some two years before Altaf came to their  house, and wrongly told him to be the brother of Altaf Hajam and proposed Rafiqa for Altaf.  Altaf was not known to him till then.  He was  told to get the consent of his home people to which he replied that father of Altaf is dead and brother and mother is not ready for the relation.  He told him that he has no objection let him make his family ready for the relation, then he left and assured to come again after a month.  Thereafter, one day a lady came to them stated that she was friend of Rafiqa who be permitted to stay back for one night in view of engagement of one Mymoona which  he refused. Prior to 18th February, Rafiqa was posted in Tourist Centre on Haj duty and she was supposed to join back in the Lines after 18th Feb. She left for her duties on 18th but did not return.  On 19th of Feb. they lodged a report in Ram Munshi Bagh. SHO told him there that Altaf Hajam was also posted there but he is ab sent from 16 days.  On 2Ist one police constable came and asked them to identify a dead body lying in police control room. They went  to Control Room and found the dead body of Rafiqa.  Rafiqa had not informed them any thing about Altaf and he knows nothing about their relations.  However, Altaf had came to them as he has stated above.  Dead body was handed over to him against receipt.  News and photograph about the occurrence was published in the paper.  The photograph of deceased are on record.  In his cross  examination the witness has stated that Rafiqa was in the police department from 8 years. Rafiqa was mostly posted in Lines, however, sometimes at other places as well. Rafiqa had not told him anything about Altaf or any other accused.  He could not identify the lady who had come to their house.  He does not know the date when Altaf had come to them. When Altaf was arrested, then he came to know that he is infact Altaf.   He has no knowledge about the affairs of Altaf and Rafiqa.  He never noticed the symptoms in Rafiqa being pregnant but she was having stone in kidney for which she was getting treatment.   The remaining accused are not known to him.  Police constable from Ram Munshi Bagh, came to them on 21st Feb. at 1-2 PM.  He was not present at his home that time but was on duty.  He then rushed to Control Room.  There were many people besides police officials from Karan Nagar Police Station.  He cannot say about the exact position of dead body.

PW Farooq Ahmad has stated that on 22-02-2003 he was posted in police station Karan Nagar.   Dead body of a female was found in Saddar Hospital.  Postmortem of the dead body was conducted and the clothes worn by the deceased were seized. Seizure memo was prepared which was signed by him.  He saw the dead body, photograph of which was published in Alsafa Newspaper.  Photographs are of the same lady whose dead body was seen by him in the Hospital. Seizure Memo ( EXPW 7/1) dated 21-02-2003 bears his signature and its contents are correct.  The chit in English ( EXPW 7/2) is the same which was seized.  Accused Gh. Mohd and Mohd Altaf Hajam were arrested and he saw them in the police station. He saw the dead body at the time of postmortem.

In his cross examination he has stated that he alongwith Dy. SP and I.O. went to Hospital. They reached police control Room at 12 noon.  The dead body was in the postmortem Room.  He did not go inside the room but saw it from outside. Doctor was inside.  The dead body was covered except face.  He saw the dead body from a distance of 1-1 ? feet.  He does not remember where from the chit was found but seizure was prepared on spot.  He do not remember how much time took them from police station to Hospital.  His statement was not recorded.

PW, Ab. Rashid has stated that on 25-02-2003 he was posted in police station Shaheed Gunj.  He went to Nowgam alongwith I.O. and accused No.1 Altaf Hajam was arrested.

PW Mst.  Shamima has stated that on 25-02-1003 she was posted in police station Womens Wing Ram Bagh under the directions of SDPO She alongwith constable  No.1046/S went to Chana Mohalla chatabal and  arrested accused Safia and brought her to police station womens wing Ram Bagh.

PW Shamsheer Hussain  has stated that accused Dr. Gh. Nabi is known to him.  In February, 2003 he was posted with SDPO, Shaheed Gunj.  On 25-02-2003 he alongwith SDPO and SHO Shaheed Gunj went to the clinic of accused, Gh. Nabi Bhat at Hari Sing High Street.  The name of the clinic is Jehlum Ultra Sound Clinic.  The said accused was present in the clinic.  One computer, one ledger, one phone diary, one I-card of the accused and one form were seized.  He signed the seizure memo.  Accused Gh. Nabi Bhat was arrested on spot. Search memo (EXPW 8) was prepared which was signed by him. Seizure memo and the arrest memo prepared were also

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