- (1.) The appellant Dr. Shyam Sundar Prasad was put on trial along with other accused namely, Qamar Alam, Shyam Kumar Sharma @ Lalia and Deepak Kumar Jaiswal to face charges not only under Sections 307, 326, 328 and 420 of the Indian Penal Code simpliciter but also with aid of Section 34 of the Indian Penal Code as also under Sections 109. 201 and 343 of the Indian Penal Code on the allegation that accused persons in conspiracy with each other fraudulently and in deceitful manner removed the kidney of Nasir All, the informant (P.W.3). The trial Court while referring the case of the other accused persons to the Court at Bombay where the case instituted under Sections 18, 19 and 20 of the Transplantation of the Human Organs Act is pending, convicted the appellant under Sections 109 and 201 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for five years and further for one year for the offence under Sections 109 and 201 of the Indian Penal Code respectively.
(2.) The case of the prosecution is that one Nasir Ali (P.W.3) lodged a complaint case before the Court of Judicial Magistrate, Bhiwandi under Sections 420, 406/34 of the Indian Penal Code and Sections 18, 19 and 20 of the Transplantation of the Human Organs Act, 1994 against Deepak Kumar Jaiswal, Lalia (Shyam Kumar Sharma), Qamar Alam. a nurse named as Mery, Dr. Tabrez and also 2-3 Doctors (not named) of Hurkisandas Nurrotumdas Hospital and Research Center, Bombay alleging therein that accused persons fraudulently and in deceitful manner got his kidney removed. The said complaint was registered as Complaint Case No. 236 of 1998 (Ext. 13) and was sent before the concerned police station Bhiwandi (Bombay) under Section 156(3) of the Code of Criminal Procedure for institution and investigation. On getting the said complaint on 7-4-1998 it was registered and one Pratap Maruti Kadam (P.W. 13) the then Sub-Inspector of Police, Crime Branch Bhiwandi (Bombay) took up the matter for investigation and did enquire from Hurkisandas Nurrotumdas Hospital and Research Center, as to whether one person named as Nasir Ali has been operated upon in the Hospital as a kidney donor which was replied in negative by the Hospital under Ext. 14 series. However, it was informed that one Nasir Ali had been tested for HLA typing on 13.3.1997. Thereafter in order to get the matter regarding removal of kidney verified P.W.13 referred Nasir Ali before the J.J. Hospital, Bombay and on being examined it was reported by the said Hospital under Ext. 15 series as "left kidney not visualized". Further in course of investigation P.W. 13 also made enquiry from the accused persons named in the complaint an.i in that course when some information was gathered he brought the informant to Ranchi along with Head constable and constable, namely, B. B. Thorat P.W. 14. Baban Niarabo P.W. 15 and Athar Khan Peer Khan Tarvi P.W. 16 all attached with Bhiwandi crime branch and took him to Kotwali Police Station on 8-5-1998 where Nasir Ali gave his Fardbeyan (Ext. 1) in presence of one R. N. Panda, Land Reform Deputy Commissioner P.W. 10 wherein it has been stated that he is a resident of Bihar but since last 14 years he has been living at Bombay and has been earning his livelihood by doing embroidery work. It has been alleged that some times in May. 1997 he came across with one Deepak at Bombay to whom he expressed his desire to go to Saudi Arab, upon it he said that he will fulfil his desire provided Rs. 40,000/- is paid, to which he agreed and then he introduced him with a man named as Lalia (Shyam Kumar Sharma) who asked for Rs. 40,000/- for the work to be done. The informant paid him Rs. 40,000/- and then Lalia brought him to Hurkisandas Nurrotumdas Hospital and Research Center where stool and urine were given for test. Further case is that after eight days when he met with the said Lalia and asked about the development, said Lalia told him that the persons to whom money was given for making arrangement, for sending the persons to Saudi Arab, has gone somewhere and when he gave threatening that he will report the matter to the police, Lalia told him not to worry about as he will send him with a man named as Salim and then Salim brought him to Bombay Airport where he introduced him to Dr. Tabrej and a nurse Mery, who brought him to Delhi and then brought him to Patna on the plea that no Air ticket was available for Saudi Arab from Delhi and then brought to Ranchi and took him to a Nursing home where blood sample was taken on the plea that if everything is found normal in the test, then only he could be sent to Saudi Arab. He was kept in one room of the Nursing home where in the night Dr.Tabrez, nurse Mery, who had come from Bombay as well as Dr. Prasad and his staff named as Radha Kishan came and informed that blood report is not normal and hence he cannot be sent to Saudi Arab. On hearing this, he became upset and then Dr. Tabrez told him that things can be set at right if blood transfusion is done and for that he will have to undergo a small operation, to which he agreed and then one injection was administered and thereafter he became senseless and after a week he found him in a bed of Hospital named as Hurkisandas Nurrotumdas Hospital and Research Center, Bombay, where he was kept for about 7-8 months and in that course said nurse Mery disclosed him that after removing his kidney it has been sold to some foreign national but neither they are paying money to her nor they are ready to share the money and in this way he has been duped by the accused persons. After knowing all these things, he fled from Hospital and reported the matter to the police station and the police officer after making enquiry asked him to forget all about by taking Rs. 5000- 10,000/- and thereafter he on the advice of his well wishers lodged the case in the Court and in course of investigation P.W. 13 and others brought him to Ranchi and took him to Kotwali Police Station where his statement was taken and on the basis of which case was registered at Ranchi. It may be mentioned that after the Fardbeyan of P.W.3 was recorded. P.W. 13 along with other police officers namely, B. B. Thorat P.W. 14, Baban Niarabo Sarunke P.W. 15 and Athar Khan Peer Khan Tarvi P.W. 16 and also with Ranchi police came io Prasad Nursing Home and did make enquiry from the appellant but he flatly denied that any kidney of the informant has been taken out. However. P.W.3 did tell P.W. 13 that this is the Nursing Home where his kidney was taken out and the persons involved were Dr. Prasad (appellant) his Compounder etc. However, it appears from the evidence of P.W. 13 that he did not find any record showing removal of the kidney in the Nursing Home. Moreover it could not be ascertained as to where and when kidney of Nasir Ali was removed. It would be significant to note here that P.W.I3 did submit charge sheet against those accused persons named in the First Information Report lodged at Bhiwandi and the appellant was not charge sheeted in the case lodged at Bhiwandi. Before submission of the charge sheet. P.W. 13 seems to have seized from the possession of one of the accused certain documents which were the affidavits. Exts. 2, 3, 4. 5 of different donors indicating therein that donors voluntarily agreed to donate kidney to different recipients and gave consent to be operated upon at the Prasad Nursing Home. Further case appears to be that after the case was lodged at Ranchi P.W. 17 Mahesh Ram Paswan. the then Inspector, took up the investigation and visited the Nursing Home and found several instruments installed which were meant for transplantation of the kidney and after finding the case true, charge sheet was submitted and, accordingly, cognizance of the offences was taken and in due course when the case was committed to the Court of session, charges were framed to which accused pleaded not guilty and claimed to be tried.
(3.) In this case the prosecution examined as many as 17 witnesses, of them Uma Shankar Prasad P.W.1, Ajay Kumar P.W.4 though have been declared hostile but have stated only that dialysis was being done in the Prasad Nursing Home. P.W.2 Roslin Josheph posted at the relevant time as Nurse has deposed in her evidence that Doctors from outside used to be called for kidney transplantation. P.W.3 Nasir Ali, informant has deposed that he had given Rs. 40,000/- to Lalia for going to Saudi Arab, but when he did not do anything, he approached him and then he told that his blood sample was not found to be normal and, therefore, he will have to be examined medically again. Therefore, one Nurse administered injection to him, as a result of which he became unconscious and when he woke up, he found that he has been operated upon at Bombay. This witness has been declared hostile. P.W.5 Jaleshwar Mahto. P.W.6 Mokhtar Ahmad. P.W.7 Basant Lal, P.W.11 Ram Prasad Burman either have proved affidavits or the signature of the deponent on the affidavits. P.W.8 Thomas Kuruvilla is on the point that Doctor had made a conference in the Hotel. P.W.10 Ravindra Nath Panda is on the point that Nasir Ali came from Bombay along with Bombay police and gave Fardbeyan (Ext. 1) in his presence. P.W.12 Anil Kumar Gupta (Technician) is on the point that appellant is having Nursing Home at Radium Road, Ranchi.;