# State of U.P v. Dr. Nishant Gupta & Ors

- **Citation:** (2019) 2 ILRA 1060
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-19
- **Case number:** Government Appeal No. 338 of 2019
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-dr-nishant-gupta-ors-44556
- **Pages:** 3

## Headnote

A. Indian Penal Code, 1860 - Sections
376(2)(E), 376(D), 166B, 201, 202, 506(2)
& Code of Criminal Procedure, 1973 -
Section 378(3) - application - grant of
leave to appeal-rejection - delay in F.I.R -
accusation of commission of rape was
against
two
employees
of
hospital
concerned-No allegation against remaining
accused persons - it was not said in the
report
that
it
was
threat
of
dire
consequences and threat of not treating or
providing medical help-the statement of
victim u/s 164 Cr.P.C. in which specific
accusation of rape is against the two
attendants not against doctors who were
giving threat-Victim has said that she
informed her parent on telephone and her
father came there and she was treated by
Doctors of the same hospital were very
affectionate to the victim- charges levelled
against them were not proved by the
prosecution- Hence they were acquitted -
Overall
appreciation
of
facts
and
circumstances and reasoning given by the
trial court, there appears no illegality or
irregularity in the impugned judgment.

B. Informant's daughter was serving as
attendant of Dr. Shalini Maheshwari at
Ganga
Sheel
Hospital,
D.D.
Puram,
Bareily. she was on her duty when she
was summoned by Shivraj attendant of
Dr. Nishant Gupta at first floor and when
she reached there, she was bolted inside
by Nar Singh and Shivraj, they committed
rape. She narrated the occurrence to Dr.
Shalini Maheshwari through telephone.
There was persistent threat by Dr. Shalini
Maheshwari
and Dr. Nishant Gupta.
Meaning
thereby
accusation
of
commission of rape was against two
employees of hospital concerned. No
allegation
against
remaining
accused
persons was there till registration of
F.I.R. except extension of persistent
threat and it was not said in the report
that it was threat of dire consequences
and threat of not treating or providing
medical help. Rather the same is the
statement of victim u/s 164 Cr.P.C. in
which specific accusation of rape is
against Shivraj and attempt to commit
rape is against Narsingh. But there is
variance.
Victim
has
said
that
she
informed her parent on telephone and her
father came there and she was treated by
Dr.
Nishant.
Dr.
Shalini
was
very
affectionate to the victim. Hence after
appreciating
all
facts,
the
essential
ingredients
for
the
charges
levelled
against them were not proved. (Para 2 & 3)

Government Appeal rejected (E-6)

## Text

1060 INDIAN LAW REPORTS ALLAHABAD SERIES

5. According the application is
rejected.
----------

(2019)10ILR A 1060

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.09.2019

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Government Appeal No. 338 of 2019

State of U.P. ...Appellant
Versus
Dr. Nishant Gupta & Ors.
 ...Accused- Respondents

Counsel for the Appellant:
G.A.

Counsel for the Respondents:
------

A. Indian Penal Code, 1860 - Sections
376(2)(E), 376(D), 166B, 201, 202, 506(2)
& Code of Criminal Procedure, 1973 -
Section 378(3) - application - grant of
leave to appeal-rejection - delay in F.I.R -
accusation of commission of rape was
against
two
employees
of
hospital
concerned-No allegation against remaining
accused persons - it was not said in the
report
that
it
was
threat
of
dire
consequences and threat of not treating or
providing medical help-the statement of
victim u/s 164 Cr.P.C. in which specific
accusation of rape is against the two
attendants not against doctors who were
giving threat-Victim has said that she
informed her parent on telephone and her
father came there and she was treated by
Doctors of the same hospital were very
affectionate to the victim- charges levelled
against them were not proved by the
prosecution- Hence they were acquitted -
Overall
appreciation
of
facts
and
circumstances and reasoning given by the
trial court, there appears no illegality or
irregularity in the impugned judgment.

B. Informant's daughter was serving as
attendant of Dr. Shalini Maheshwari at
Ganga
Sheel
Hospital,
D.D.
Puram,
Bareily. she was on her duty when she
was summoned by Shivraj attendant of
Dr. Nishant Gupta at first floor and when
she reached there, she was bolted inside
by Nar Singh and Shivraj, they committed
rape. She narrated the occurrence to Dr.
Shalini Maheshwari through telephone.
There was persistent threat by Dr. Shalini
Maheshwari
and Dr. Nishant Gupta.
Meaning
thereby
accusation
of
commission of rape was against two
employees of hospital concerned. No
allegation
against
remaining
accused
persons was there till registration of
F.I.R. except extension of persistent
threat and it was not said in the report
that it was threat of dire consequences
and threat of not treating or providing
medical help. Rather the same is the
statement of victim u/s 164 Cr.P.C. in
which specific accusation of rape is
against Shivraj and attempt to commit
rape is against Narsingh. But there is
variance.
Victim
has
said
that
she
informed her parent on telephone and her
father came there and she was treated by
Dr.
Nishant.
Dr.
Shalini
was
very
affectionate to the victim. Hence after
appreciating
all
facts,
the
essential
ingredients
for
the
charges
levelled
against them were not proved. (Para 2 & 3)

Government Appeal rejected (E-6)

(Delivered by Hon'ble Ram Krishna Gautam, J.)

1. This appeal has been proposed by
State of U.P. under section 378(3) of
Cr.P.C. against judgment of acquittal
passed by court of Additional Sessions
Judge, fifth, Bareilly, on 9.4.2019 in S.T.
No. 1051 of 2013, State Vs. Shivraj and
others, u/s 376(2)(E), 376(D), 166B, 201,
202, 506(2) I.P.C., P.S. Prem Nagar,
2 All. State of U.P. Vs Dr. Nishant Gupta & Ors.
1061
District Bareilly, arising out of Case
Crime No. 1066 of 2013.

2. Learned AGA argued that the
court has convicted Shivraj and Nar Singh
and
sentenced
them
for
offence
punishable u/s 376(2)(E) I.P.C. with ten
years R.I. and Rs. 5000/- each and in case
of
default,
one
month's
additional
imprisonment, they have been further
sentenced
with
twenty
years
imprisonment and fine of Rs. 20,000/-
each and in default six months' additional
imprisonment for offence punishable u/s
376D I.P.C. with direction for concurrent
running of sentences and adjustment of
previous imprisonment. But Dr. Nishant,
Dr.
Shalini,
Dr.
Dushyant,
Manish
Vaishnav and Sanket Bali have been
acquitted of the charges levelled against
them, whereas there was evidence on
record with regard to charges framed
against them. The trial court failed to
appreciate the facts and law brought on
record, which resulted this judgment of
acquittal of those accused persons. Hence
this application with above prayer for
grant of leave to appeal.

3. From the very perusal of material
on record, it is apparent that F.I.R. (Ext
Ka1) was got lodged by informant at P.S.
Prem Nagar on 16.7.2013 at 19.00 hours
and
it
was
with
accusation
that
informant's daughter, aged about 18 years,
was serving as attendant of Dr. Shalini
Maheshwari at Ganga Sheel Hospital,
D.D. Puram, Bareily. On 14.7.2013
(Sunday) she was on her duty when she
was summoned by Shivraj attendant of
Dr. Nishant Gupta at first floor and when
she reached there, she was bolted inside
by Nar Singh and Shivraj, they committed
rape with her and while being under
injury, she was sent back to her home.
She narrated the occurrence then matter
was
communicated
to
Dr.
Shalini
Maheshwari
through
telephone,
the
injured was taken to hospital and she was
put under treatment. Then after threat for
opening leap and making complaint to
police was extended. He tried to get case
lodged on 15.7.2013, but owing to
pressure exercised by accused, it could
not be lodged and ultimately it was
lodged on 16.7.2013. There was persistent
threat by Dr. Shalini Maheshwari and Dr.
Nishant
Gupta.
Meaning
thereby
accusation of commission of rape was
against
two
employees
of
hospital
concerned.
No
allegation
against
remaining accused persons was there till
registration of F.I.R. except extension of
persistent threat and it was not said in the
report
that
it
was
threat
of
dire
consequences and threat of not treating or
providing medical help. Rather the same
is the statement of victim u/s 164 Cr.P.C.
in which specific accusation of rape is
against Shivraj and attempt to commit
rape is against Narsingh. But there is
variance. Victim has said that she
informed her parent on telephone and her
father came there and she was treated by
Dr. Nishant. Dr. Shalini was very
affectionate to the victim. Hence after
appreciating
all
facts,
the
essential
ingredients for the charges levelled
against them were not proved by the
prosecution and the trial court came to the
conclusion that essential ingredients for
the aforesaid charges levelled against
them were not made out. Hence they were
acquitted of the charges levelled against
them vide impugned judgment. Overall
appreciation of facts and circumstances
and reasoning given by the trial court,
there appears no illegality or irregularity
in the impugned judgment. Hence this
application lacks merit.
1062 INDIAN LAW REPORTS ALLAHABAD SERIES

4. Accordingly rejected.
----------

(2019)10ILR A 1062

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.09.2019

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Government Appeal (u/s 378 of Cr.P.C.) No.
170 of 2019

State of U.P. ...Appellant
Versus
Noor Mohammad & Anr.
 ...Accused-Respondents

Counsel for the Appellant:
A.G.A.

Counsel for the Respondents:
------

A. Code of Criminal Procedure, 1973 -
Section
407-application-rejection-trial
delayed, by getting it transferred -
adjournment
was
sought-nonappearance of counsel and accused on
the date given-issue of warrant against
accused by court was the ground for
transfer.

B. It has been specifically mentioned by
the Trial Judge that newly engaged Senior
Counsel for defence, has sought an
adjournment of the case and given an
assurance that he will argue the case on
the only date requested by him. This date
was given to him. On that particular date,
none of the accused appeared nor the
counsel appeared, which compelled the
court for issuing warrants against the
accused persons and this was made a
ground for Transfer Application, moved
before the court of Sessions Judge, but
nowhere it was mentioned in the said
Transfer Application that there had been a
direction by this Court for expeditious
disposal of above Sessions Trial, that too,
in a time bound frame. This has neither
been mentioned before the court of
Sessions Judge, Agra, nor before this
Court, in this Transfer Application, which
itself goes to show modus and intention of
the accused-applicants, who have filed this
Transfer Application, to get the trial
delayed, by getting it transferred from the
court where it is likely to be decided in
near future. (Para 7, 8 ,10, 11 & 12)

Transfer Application (Crl.) rejected (E-6)

List of Cases Cited: -

1. St. of Bihar Vs Hemlal Sah 2014 Crl. L.J.
1767

2. St. of Mah. Vs Ramdas Shrinivas Nayak AIR
1982 SC 1249 at page 1251

(Per Lord Atinkson in Somasundaram Chetty
Vs Subramanian Chetty AIR 1926 PC 136)

(Delivered by Hon'ble Ram Krishna
Gautam, J.)

1. This Government Appeal has
been proposed, under Section 378(3) of
Code of Criminal Procedure, with an
application for grant of leave to appeal
against judgment of acquittal passed by
Court
of
Special-Judge,
EC
Act/
Additional District and Sessions Judge,
Bareilly, in Criminal Appeal No. 67 of
2001 Noor Mohammad vs. State of U.P. ,
wherein the judgment of conviction and
sentence, passed by Court of Judicial
Magistrate,
North
Eastern
Railway,
Bareilly, has been altered and convicted
persons have been acquitted of charge of
offence punishable, under Section 3 of
Railway
Property
Unauthorized
Occupation Act, with this contention that
the Appellate Court failed to appreciate
facts and law placed before it, thereby,