seized. There were more than ten items mentioned in the seizure memo. The clothes found on the dead body, a few currency notes and a chit. The chit found on dead body was also shown to him. He did not remember from which part of the body the chit of diagnostic centre was found. He did not remember the colour of ink used for filling up the chit. The items in the seizure memo were recovered in his presence.
PW Mohd Yousuf Malik has stated that he is working in SMHS Hospital from 1985 as a Ticket clerk. His job is to prepare tickets for all patients. Muzaffar Malik PW was a nursing orderly those days assigned the job of stomach wash in poison cases. In the year 2003 also he was discharging his duties as a ticket clerk in SMHS Hospital. Since he was in his room therefore does not know what happens outside, however, a policeman came to him and informed that an unclaimed dead body was found in the Hospital. He was also told about the dead body but he pleaded ignorance. Muzaffar Nursing orderly has died.
PW Mohd Shafiq has stated that on 25-02-3003 he was posted as SHO police station Shaheed Gunj. On that day he received a letter from SP south with a direction to register a case in an abortion death matter. The letter is on record and is correct. Accordingly case FIR No. 10/2003 under sections 304, 120-B, 201, 316,312, 314, 313,315,34 RPC came to be registered and investigation assigned to SDPO Shaheed Gunj, S.P. Pani. He alongwith Mr. Pani visited the clinic where the occurrence had taken place. The clinic belongs to the accused present in the court. From the clinic of Dr. Gh. Nabi, accused, one register, a telephone diary recovered from pocket search and some forms were seized. The accused was also arrested.
In his cross examination the witness has stated that the articles were seized from the clinic of Doctor, Gh. Nabi Bhat, accused on 25-02-2003. He had gone there with the I.O. and the escort people were with them. He was an Inspector those days. The clinic was open that time. Besides accused Doctor, his compounder Reyaz Ahmad was also present. Clinic comprises of two rooms, surgical tools and a bed was in one of the rooms. Diary of the accused and one consent form containing the signatures of Altaf Hajam was recovered. He does not know whether the surgical tools were seized.
PW Mohan Lal has stated that on 21-02-2003 he was posted in police station Karan Nagar as ASI. On that day a written report was received from CMO Saddar Hospital that an unidentified dead body was lying in the hospital upon which he alongwith his staff reached the Hospital and after seeing the dead body informed his superiors. Photographer was called, Photography taken and dead body taken into possession. Dead body was brought to the police station at 9.45 a.m. He requested the doctor in writing for conducting postmortem and the report is on record (EXPW3) Fard Masqboozgi of dead body is in his hand ( EXPW 3/1),. Memo of recovery of dead body is also prepared by him ( EXPW 3/2),. The docket issued to the doctor is in his hand ( EXPW 33) At the time of postmortem he seized the clothes received from the doctor. The seizure memo is in his hand and bears his signature. He also filled the injury form of the dead body which is on record ( EXPW 33/1) In fact the dead body was of a lady constable as identified by a Lady ASI. The dead body was of a constable from Auxiliary Police R/o Sonawar. Then it came to light that the occurrence had taken place at HSHS and the matter pertained to police station, Shaheed Gunj. He handed over the whole file with proceedings u/s 174 Cr. P.C. to SDPO Shaheed Gunj. The legal heirs of the deceased arrived in the Hospital during postmortem and then the dead body was handed over to them against proper receipt which is in his hand and is correct.
In his cross examination the witness has stated that he was ASI in the year 2003. Report was brought to the police station by a Nursing Orderly. The incharge SHO, Late Foja Singh, directed him to go to the Hospital alongwith 4/5 constables. They reached to Hospital within five minutes and CMO was waiting for them. The hospital staff was around the dead body. No police man was there. The dead body was kept there for some time. But no body identified it. The dead body was looking weak. The dead body was having a sweater and pheran. The personal search of dead body was not conducted in the hospital but it was done at the time of postmortem. There was no visible injury on the body of the deceased. It took him 45 minutes. He informed Dy SP and SP who also arrived on spot. The same police man accompanied the dead body from Hospital who had came from the police station. They reached police Hospital at 11.45 am. Dr. Mohd Maqbool was on duty and he himself forwarded the request for postmortem. He remained present outside during the course of postmortem. Doctor came out after half an hour. All clothes worn by the deceased were handed over to him by the doctor. Two samples were taken by the doctor, one was sent to FSL and another handed over to him, which was sealed by him on spot. A chit was recovered from the pocket of the deceased of Jehlum Diagnostic centre and some thing was written on it. Name of the deceased was written on it and prescription was also hand written. The said chit was found in pocket of pheran of the deceased. The father of the deceased identified the dead body during postmortem and started crying.
PW Swanam Prakash Pani stated that on 21-02-2003 he was posted as ASP at Shaheed Gunj. He had investigated the instant case. He had prepared the charge sheet which is in his hand and bears his signature. Same is exhibited as EXTP-34/1. Arrest memoes in respect of accused Dr. Ghulam Nabi and Mohammad Ashraf are also in his hand and bears his signatures. These are already exhibited as EXPW 8/2 and EXPWE 26. Personal search memoes in respect of accused Mohammad Ashraf and Dr. Ghulam Nabi are also under his signatures and same are already exhibited as EXPW-8 and EXPW 23 respectively. Seizure memo exhibited as EXPW 8/1 bears his signatures and is in his hand. Site plan on the file prepared on 22-02-2003 bears his signatures. It is exhibited as EXTP-34/2. He identifies photographs of deceased Rafiqa Bano placed on the file. Another seizure memo on the file is also in his hand and bears his signatures. It is exhibited as EXRP-34/2. Superdnama EXPW 18/1 bears his signatures. A letter sent to Medical Officer police Hospital also bears his signatures. It is exhibited as EXTEP-34/4., Another letter addressed to Executive Magistrate for conducting the DNA test also bears his signatures. It is exhibited as EXTP 34/5. Letter to CFSL Calcutta dated 22.2.2003 also bears his signatures. It is exhibited as EXTP 34/6. The form of blood samples taken of accused Mohammad Altaf and Ghulam Mohammad Sheikh father of the deceased also bears his signatures. These are exhibited as EXRP-34/7 and EXTP-34/8 respectively. Suprdanama regarding the release of seized items also bears his signatures and he testified to its contents. It is exhibited as EXTP-34/9 Photostat copy of the consent form of Jehlum Diagnostic center was recovered from possession of accused Ghulam Nabi and signatures of deceased thereon was identified by one Farida Banoo sister of deceased. It is marked as “ SPP” The postmortem report on file is the same obtained by him. He had recorded the statement under section 161 Cr. PC of the witnesses. A chit recovered from Jehlum Diagnostic center already exhibited as ExPW 7/2 was re-seized by him. ASI Mohan Lan was conducting the proceedings under section 174 Cr. P.C. before he stepped in and embarked upon investigation. It was on 22.2.2003.
On cross examination the witness stated that he joined the police department in the year 2000. His first posting was as ASP Jammu and there after he was posted as ASP Shaheed Gunj. He had investigated a murder case at Jammu prior to investigation of instant case. Presumably the information regarding discovery of unidentified dead body of the female was received through a wireless message but he could not say the same with certainty. The information must have been reduced into writing at police station Karan Nagar. He was a supervising officer in his capacity as ASP. He went on spot. He did not recollect the time of visit. It was day time when he personally reached the spot. The then SHO police station Karan Nagar also accompanied him to the spot. As for as he recollect there was no civilian around us at the place of discovery. A team escorted him to the place of discovery. There also remains a team of police in SMHS hospital round the clock. ASI Mohan Lal had conducted the inquest proceedings. The inquest proceedings culminated in lodging the FIR. It is correct that the dead body was sent for postmortem to the police hospital and thereafter inquest proceedings were initiated. He had not seized the chit from the dead body but it was re-seized by him as chit had been recovered earlier by officer who was conducting the proceedings. The seized chit does not bear his signatures. It bears the signature of SHO on the reverse. The chit is printed material which could be manufactured. He did not obtain search warrants from any Magistrate as there was urgent need to search the premises of Jehlum Diagnostic center and a delay would have amounted to destruction of evidence. The consent from recovered from the accused being a xerox copy was not sent to hand writing expert for obtaining the opinion. No medical equipment was recovered or seized from Jehlum Diagnostic center.
I have heard the arguments of the learned PP as also the learned counsel for the accused. I have also minutely gone through the available record.
The learned PP has vehemently argued before me that the accused under a well planned criminal conspiracy between themselves made an unborn child to die inside the womb of the deceased mother by inducing incomplete illegal abortion which also caused the death of the mother Mst. Rafiqa, who was pregnant by 5 to 7 months as she had developed illicit relations with accused No.1 Altaf Ahmad Hajam with whom she was working in police department prior to the occurrence.
He has argued that in the first instance accused No.1 developed ,illicit relations with the deceased Mst. Rafiqa and once she conceived and was pregnant at an advanced stage, both accused Altaf and Mst. Rafiqa consulted accused, Dr. Ghulam Naqbi Bhat at his clinic “JEHLUM DIAGNOSTIC CENTER” HSHS, Srinagar, to abort the child illegally which was agreed to by the Doctor and while doing so, with the active aid and assistance of accused Mohd Ashraf Bhat and Mst. Safiya who were then working with him at his clinic, the deceased Mst. Rafiqa died, obviously, in view of the advanced stage of pregnancy. He has further argued that once the deceased Mst. Rafiqa died a criminal conspiracy was hatched by all the accused and the dead body of deceased wrapped in a blanket was finally dumped in SMHS Hospital, Srinagar, where from it was recovered by the police upon the information of Hospital authorities. The learned PP has argued that since the dead body was unidentified, inquest proceedings under section 174 Cr. P.C. were initiated in the first instance and the dead body was sent for postmortem to police Hospital. During the course of postmortem it came to light that the deceased lady had been subjected to illegal abortion at the advanced stage of pregnancy which ultimately resulted in her death.
The learned PP has argued that the doctor accused No.3 deserves a severe punishment for having committed the heinous offences of which he has become habitual for his greed and lust. He has argued that the prosecution has proved beyond doubt the involvement of all the accused in commission of offences punishable under sections 304, 316, 201,34,120-B RPC and they deserve to be punished accordingly. The learned PP has also argued that the accused No.3 was facing trial before Budgam court also for similar offences and even in 2012 two more cased have been registered against him. Mr. Teli has further argued that accused No.3 has not killed the deceased only but has while attempting to induce illegal abortion at an advanced stage of pregnancy killed the child in the womb of the mother and if the accused are not dealt with in accordance with law it will be injustice to the family of the victim in particular who have lost their young daughter at a very young age and on the other hand it will encourage the self styled doctor to repeat such offences of which he has become habitual. The learned PP has, therefore, prayed that since the prosecution has proved their case beyond reasonable doubt the accused be convicted accordingly.
The learned counsel for the accused on the other hand has argued that the accused have wrongly been implicated in the case due to some business rivalry and as per his argument, the prosecution has failed to substantiate the allegation leveled against the accused which would warrant their conviction in the present case. It has been further argued before me that the accused No.3 is a qualified Doctor by profession and is running a diagnostic centre which is manned by professional doctors but the deceased has never approached the said doctor for any consultation in sofar her pregnancy is concerned. He has argued that recovery of the chit ( EXPW 7/2) alleged to have been found in the possession of the deceased Rafiqa has not been proved because the prosecution witnesses have given contradictory statements about the recovery of the said chit and besides that the photo copy of the consent form ( Mark SPP) allegedly recovered from the Diagnostic centre of accused No.3 cannot be read in evidence against the accused because the prosecution has failed to explain as to how and under what circumstances they could lay their hand upon photocopy of a document of which the original was not traceable. He has further argued that no conviction can be based on the evidence brought on record by the prosecution as none of the prosecution witnesses has stated any thing against the accused to connect them with the commission of offences. As per his argument even the family members of the deceased which include father and sister have also not stated any thing against any of the accused except that Altaf accused had some time back gone to the house of the deceased with an offer to marry her but that would not make out a case for his conviction in the instant case. He has, therefore, prayed that in the absence of any direct or circumstantial evidence available against the accused, the prosecution case deserves to be
Hell with them. Jahanam yeyen zinaiyen