SrinagarThe Jammu and Kashmir High Court has acquitted a doctor and four persons who were held guilty in four years ago by a trial court for abortion at advanced stage of pregnancy of a woman which led to her death at a local clinic here in 2003.
The whole prosecution case is shrouded in mystery, confusion worst confounded, chain of links totally broken, therefore, on such type of circumstantial evidence, we are not persuaded to hold that the accused are guilty, a division bench of Justices Mohammad Yaqoob Mir and Ali Mohammad Magrey and ordered acquittal of the five persons.
Trial court has wrongly drawn the conclusion de heros the available evidence, the court said. In our view, evidence has been totally mis-appreciated. Total doubtful position of the prosecution case inspires confidence that the guilt against the accused is not proved. Thus the judgment passed by the trial court is unsustainable.
The division bench said that the trial court while addressing the concern of judicial conscience, appears to have been swayed by the gruesome crime. In the process has erred in appreciating the evidence, the court said.
About illicit relation between accused Mohammad Altaf Hajam and deceased woman (name withheld), the trial court has noticed that the accused met the woman at Lal Chowk and then they went to Dr.Ghulam Nabi (other accused) where it surfaced that woman was pregnant.
Then (the trial court ) has observed that they had consulted Dr. Ghulam Nabi (one of the accused) for termination of fetus at his clinic and as a consequence of criminal conspiracy, Dr. Ghulam Nabi, agreed to the illegal termination of the fetus at his clinic Jehlum Diagnostic Centre, Hari Singh High Street on the scheduled date after obtaining a consent from accused Altaf and (deceased), strange because the consent form is alleged to have been recovered from the personal search of the accused Dr. Ghulam Nabi and not from the Diagnostic Centre, the court said.
If the doctor had to destroy the evidence, the division bench said, then why he should have retained photocopy of the consent form with him.
No evidence is there to show that the accused Dr. Ghulam Nabi had destroyed the original consent form. That apart, the photocopy of the consent form not been proved. The signatures on the consent form have not been proved, the court said, terming reliance by the trial court on the same as quite strange.
On February 2013, the Principal District and Sessions Judge Srinagar had sentenced the doctor Ghulam Nabi Bhat of Gopal Pora Budgam and one of the other convicts, Mohammad Altaf Hajam of Nowgam here, to ten years rigorous imprisonment with a fine of Rs 20000 and 30000 correspondingly. In default of fine, the court said, the duo shall undergo further imprisonment of six months.
The court had also sentenced Mohammad Ashraf Bhat of Bomai Sopore, brother of the guilty doctor, to five years in jail with a fine of Rs 20000 while two other convicted personsReyaz Ahmad Dar of Baghat Barzullah and Mst. Safia (a middle aged woman) were sentenced to the period which they have already served in jail following their arrest by police in connection with crime in 2003.
However, the court awarded fine of Rs 50000 and Rs 20000 on Bhat and Safia with the direction that they shall undergo a simple imprisonment of one year and six months respectively in case of non-payment of the fine.
Two persons Ghulam Mohammad Hajam and Abdul Majeed Hajam, both residents of Nowgam here, were acquitted by the court for lack of evidence and proof against their involvement in the crime.
Case History
On 21 February 2003, police recovered body of a woman near Causality Section of SHMS hospital here.
A piece of paper with the name of a clinicJehlum Diagnostic Centre Hari Singh High Street was recovered from the possession of the body. Her post-mortem revealed that the woman was six to seven months old pregnant. Police raided the clinic and seized all the relevant documents.
Subsequently, the woman was identified as Kulsuma (name changed) of Sonawar here and police recorded statements of her sister and father. This led police to suspect involvement of Mohammad Altaf Hajam and his family.
The seizure of material made at the clinic led police to establish that an illegal abortion was conducted on Kulsuma when she was six-seven month pregnant and her body was thrown near SMHS hospital under criminal conspiracy.
Following this police registered an FIR (10/03) under section 304, 312, 313, 314, 315, 316, 120-B, 210/34 RPC, converting the inquest proceedings under 174 CrPC (registered after recovering of the body) to regular case.
After completion of investigation, police filed a charge sheet, claiming that Mohammad Altaf Hajam had developed illicit relations with Kulsuma and once coming to know about the pregnancy wanted her to abort the foetus.
As per police, Ghulam Mohammad Hajam, Abdul Majeed Hajam and Mst Safia helped Altaf in getting abortion.
Despite knowing abortion at advanced stage of pregnancy would lead to death, police said, Dr Ghulam Nabi Bhat along with his brother Mohammad Ashraf Bhat (working as assistant) conducted the illegal abortion at the clinic. The post mortem attributed womans death to incomplete abortion, police said.
Following the operation, the woman was first shifted to the residence of Mohammad Ashraf Bhat and later her body was dumped near the SHMS hospital.
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