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2018 Supreme(P&H) 4203
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH
Fateh Deep Singh, J.
Dr. O.p. Mahajan - Appellant
Versus
State Of Punjab - Respondent
CRA-S Nos. 3958, 4101, 4119, 4369, 4473 and 4474-SB of 2013 (O&M)
Decided On : 17-10-2018
R.S. Rai, Senior Advocate with Mr. Anurag Arora, Advocate for Appellant-Dr.S.P.S. Grover, for the Appellant; A.P.S. Deol, Senior Advocate with Mr. Himaat Deol, Advocate for Appellant-Dr. Jagdish Gargi, for the Appellant; Preetinder S. Ahluwalia, Advocate for Appellant-Dr. O.P. Mahajan, for the Appellant; Gautam Dutt, Advocate for Appellant-Suresh Kumar Sharma, for the Appellant; S.S. Narula, Advocate for Appellant-Dr.H.S. Bhutani, for the Appellant; K.S. Nalwa, Advocate for Appellant-Dr. Arjinder Singh, for the Appellant; H.S. Sullar, Dy. Advocate General, Punjab, for the Respondent/State
Headnote:
The Court set aside the judgment of conviction and allowed the appeals filed by the accused, holding that the prosecution failed to prove beyond a reasonable doubt that the donor was kidnapped, coerced, or forced to donate his kidney, and that the accused were involved in any criminal conspiracy or committed any of the offenses charged under the Indian Penal Code (IPC) or the Transplantation of Human Organs and Tissues Act (TOHO). The Court found that the investigation was shoddy and lacked credible evidence, and that the trial court erred in relying on unreliable and inadmissible evidence.
Fact of the Case:
The case involved allegations of kidney transplantation scam, where a complainant alleged that his son, Bagicha Singh, was kidnapped and forced to donate his kidney to the recipient, Suresh Kumar Sharma. Several accused, including doctors, were charged with various offenses under the IPC and TOHO.
Finding of the Court:
The Court found that the prosecution failed to establish that Bagicha Singh was kidnapped or coerced into donating his kidney. The Court also found that the authorization committee and the hospital authorities had followed the procedure laid down under the TOHO Act and Rules and that there was no evidence of any criminal conspiracy or involvement of the accused in the alleged offenses.
Issues: 1. Whether the prosecution proved beyond a reasonable doubt that the donor was kidnapped, coerced, or forced to donate his kidney? 2. Whether the accused were involved in any criminal conspiracy or committed any of the offenses charged under the IPC or TOHO?
Ratio Decidendi: 1. The Court held that the prosecution failed to prove beyond a reasonable doubt that the donor was kidnapped, coerced, or forced to donate his kidney. The Court found that the evidence presented by the prosecution was unreliable and inadmissible, and that the trial court erred in relying on such evidence. 2. The Court held that there was no evidence of any criminal conspiracy or involvement of the accused in the alleged offenses. The Court found that the authorization committee and the hospital authorities had followed the procedure laid down under the TOHO Act and Rules, and that there was no evidence of any wrongdoing on their part.
Final Decision: The Court set aside the judgment of conviction and allowed the appeals filed by the accused.
JUDGMENT
Fateh Deep Singh, J. - All the aforesaid criminal appeals bearing CRA-S No.3958- SB of 2013 filed by Dr. O.P. Mahajan; CRA-S No.4101-SB of 2013 filed by Dr. Jagdish Gargi; CRA-S No.4119-SB of 2013 by Dr. S.P.S. Grover; CRA-S No.4369-SB of 2013 by Suresh Kumar Sharma; CRA-S No.4473-SB of 2013 by Dr. H.S. Bhutani and CRA-S No.4474-SB of 2013 moved by Dr. Arjinder Singh, have arisen out of the common judgment of conviction and order of sentence dated 02.11.2013 passed by the Court of learned Additional Sessions Judge, Amritsar, whereby in FIR No.118 of 2002 under Sections 420, 468, 469, 471, 295-A, 363, 367, 368, 506 IPC and Sections 18/19/20 of the Transplantation of Human Organs and Tissues Act, 1994 pertaining to Police Station Kotwali, District Amritsar, the Court has held all the accused guilty and sentenced them as follows:
| Name of convict | Offence u/s | Sentence & fine |
| Suresh Kumar | 367 IPC | Rigorous imprisonment for a period of eight years and to pay a fine of Rs.10,000/-, in default of payment of fine to further undergo rigorous imprisonment for six months. |
| Suresh Kumar, Dr.Arjinder Singh, Dr.H.S. Bhutani, Dr.S.P.S. Grover | 368 IPC | Rigorous imprisonment for a period of five years each and to pay a fine of Rs.5,000/-each, in default of payment of fine to further undergo rigorous imprisonment for four months each. |
| Suresh Kumar, Dr.Arjinder Singh, Dr.H.S. Bhutani, Dr.S.P.S. Grover | 506 IPC | Rigorous imprisonment for a period of two years each. |
| Suresh Kumar, Dr.Arjinder Singh, Dr.H.S. Bhutani, Dr.S.P.S. Grover | 419 IPC | Rigorous imprisonment for a period of two years each. |
| Suresh Kumar, Dr.Arjinder Singh, Dr.H.S. Bhutani, Dr.S.P.S. Grover | 420 IPC | Rigorous imprisonment for a period of five years each and to pay a fine of Rs.10,000/-each, in default of payment of fine to further undergo rigorous imprisonment for four months each. |
| Suresh Kumar, Dr.Arjinder Singh, Dr.H.S. Bhutani, Dr.S.P.S. Grover | 467 IPC | Rigorous imprisonment for a period of five years each and to pay a fine of Rs.10,000/-each, in default of payment of fine to further undergo rigorous imprisonment for six months each. |
| Suresh Kumar, Dr.Arjinder Singh, Dr.H.S. Bhutani, Dr.S.P.S. Grover | 468 IPC | Rigorous imprisonment for a period of three years each and to pay a fine of Rs. 5,000/-each, in default of payment of fine to further undergo rigorous imprisonment for three months each. |
| Suresh Kumar, Dr.Arjinder Singh, Dr.H.S. Bhutani, Dr.S.P.S. Grover | 471 IPC | Rigorous imprisonment for a period of two years each and to pay a fine of Rs.2,000/-each, in default of payment of fine to further undergo rigorous imprisonment for one month each. |
| Suresh Kumar, Dr.Arjinder Singh, Dr.H.S. Bhutani, Dr.S.P.S. Grover, Dr.O.P. Mahajan, Dr.Jagdish Gargi | 120-B IPC | Rigorous imprisonment for a period of three years each and to pay a fine of Rs. 10,000/-each, in default of payment of fine to further undergo rigorous imprisonment for three months each. |
| Suresh Kumar, Dr.Arjinder Singh, Dr.H.S. Bhutani, Dr.S.P.S. Grover, Dr.O.P. Mahajan, Dr.Jagdish Gargi | 18 of Transplantation of Human Organs Act, 1994 | Rigorous imprisonment for a period of five years each and to pay a fine of Rs.10,000/-each, in default of payment of fine to further undergo rigorous imprisonment for two months each. |
| Suresh Kumar, Dr.Arjinder Singh, Dr.H.S. Bhutani, Dr.S.P.S. Grover, | 19 of Transplantation of Human Organs Act, 1994 | Rigorous imprisonment for a period of five years each and to pay a fine of Rs.20,000/-each, in default of payment of fine to further undergo rigorous imprisonment for six months each. |
2. The same is subject matter of challenge before this Court in these separa
