- (1.) The matrix of the facts and material, which needs a necessary mention, for the limited purpose of deciding the instant petition for regular bail, filed by petitioner Dr.Arjinder Singh Bains and emanating from the record, as claimed by the prosecution is that, one Ruksana, elder sister of complainant Akaramudeen son of late Mehardeen (for brevity 'the complainant'), resident of Vijay Nagar, District Ghaziabad, used to remain ill. He was badly in need of money for her treatment. He met accused Shakeel, who advised him to remove one vein from his body and he would get Rs.2 lacs in lieu thereof. Consequently, the complainant gave his consent. Accused Shakeel brought him in village Khuda Lahura near Chandigarh and introduced him with other co-accused Amitab Pandey and Vikas. They have also reiterated and advised him to get one vein removed from his body and he would get Rs.2 lacs in this regard. At that time, the mother and brother of accused Amitab Pandey were also present there. Thereafter, all the accused took the complainant to Shivalik Hospital at Mohali and prepared some fake documents through accused Parshotam of Mungra (Bihar) to indicate him the brother of accused Archana Goyal, to whom, her vein was to be donated. Accused Faggu alias Sachin, Lab Technician, has taken the blood sample of the complainant and conducted the test at Shivalik hospital. Thereafter, Faggu alias Sachin, Lab Technician, was stated to have changed his (complainant's) blood with the blood sample of brother of patient Archana Goyal, after accepting the amount of Rs.80,000/- from Amitab Pandey.
(2.) Sequelly, the case of the prosecution further proceeds that having completed all the codal formalities and after receipt of the DNA reports, the petitioner was stated to have performed the operation of complainant and he was discharged from the hospital on the fourth day of the surgery. Thereafter, the complainant went to his village. Subsequently, he suffered some pain in his stomach. He consulted the doctor there, who informed him that his one kidney was removed by operation. When confronted with the situation, main accused Amitab Pandey and Vikas did not give any clear answer to the complainant. All the accused were stated to have connived with each other and removed the kidney of the complainant by preparing the fake documents. In the background of these allegations and in the wake of complaint of complainant, initially, a criminal case was registered against main accused Shakeel, Amitab Pandey, Vikas, Archana Goyal, Parshotam, Manju Pandey, Faggu alias Sachin and Ashok Pandey etc., vide FIR No.42 dated 5.7.2012 (Annexure P-1), on accusation of having committed the offences punishable under Sections 419, 420, 468, 471 and 474 read with Section 120-B IPC and Sections 18, 19A and 20 of The Transplantation of Human Organs Act, 1994 (hereinafter to be referred as 'the TOHO Act'), by the police of Police Station Phase-VIII, S.A.S. Nagar (Mohali), in the manner depicted here-in-above.
(3.) During the course of investigation, the police joined the petitioner as a prosecution witness, who has explained his position and made statement dated 1.8.2012 (Annexure P14), which, in substance, is as under:- "It is stated that I am resident of the above address. I having taken a portion on rent at the premises of Shivalik Hospital, have been running a hospital in the name and style Surya Kidney Care. Any kidney patient who comes to me for treatment, I obtain the documentary Id proof and affidavit of the patient and his blood related donor. Thereafter, after taking their blood samples send the same to the Laboratory for their D.N.A. test and on receipt of the blood test report, after taking the consent of the doctor and patient; transplant the kidney to the patient by performing an operation. Kidney patient Archna Devi W/o Sandeep Goel aged 39 years was admitted in my hospital on 16.4.11; who after having been transplanted the kidney was discharged on 25.4.11; the kidney of her brother Mukesh Chaudhary S/o Late Tara Chand Chaudhary was transplanted to her; who was admitted in my hospital on 17.4.11 and was discharged on 22.4.11. The affidavits of both of them, residence proofs, Result Report and attested copies of the reports regarding admission and discharge are submitted to you; the original record is in my custody and would produce the same in the court at the time of evidence. The blood samples of both patient and donor were got tested from Tamana Lab, Sector 52, Chandigarh; Phagu @ Sachin who is technician of Tamana Lab had taken these samples from my hospital and result reports were also delivered by him. I have got recorded my statement, heard, which is correct. The C.D. which I have submitted to you contains the full mention about the consent of donor Mukesh Chaudhary and Achna Devi, before retrieving the kidney.";