No foetus at autopsy, no pregnancy test: Bombay HC upholds conviction of doctor for death after abortion
Justice Abhay S. Waghwase dismissed the appeal of a retired medical officer against her conviction under Section 304 Part II IPC and the MTP Act, holding that a team autopsy opinion of post-abortal haemorrhage from a uterine perforation could not be discarded merely because no foetal or placental tissue was found.
The autopsy found no foetus, no placenta and no placental site, and no one ever tested the dead woman's blood or urine for pregnancy. The Bombay High Court has still upheld the conviction of a doctor for her death after an abortion, fourteen years after it happened.
Justice Abhay S. Waghwase, sitting at the Aurangabad bench, dismissed the appeal of Dr Surekha Shamlal Totla on 31 October 2026.
She had been convicted by an Additional Sessions Judge at Jalgaon on 25 January 2023 under Sections 304 Part II, 312, 314 and 315 of the Indian Penal Code and Sections 5(3) and 5(4) of the Medical Termination of Pregnancy Act, 1971.
The judgment does not record the sentence. It rests on the evidence of the woman's husband and a relative, a doctor who received her in a critical state, and an autopsy team's opinion on the cause of death.
Stomach pain at 9.30, dead by evening
On 22 June 2012, Balasaheb took his wife Kusumbai to the appellant at Erandol in Jalgaon district because she had stomach pain. His sister-in-law Kalpanabai went with them. Both said they reached at about 9.30 am.
According to both witnesses, the appellant examined Kusumbai and said she was two and a half months pregnant. The foetus was unwell, she told them, and an abortion was urgently needed to save Kusumbai's life. The husband consented and paid Rs 10,000.
Kusumbai was taken inside while the family waited. At about 4 to 4.30 pm the appellant told them her condition was critical and she had to be moved. She was taken by auto-rickshaw, with the appellant accompanying them, to the Baba Amte Rural Hospital run by Dr Sangram Patil.
Dr Patil said the appellant had phoned him about a patient with bleeding who needed resuscitation, and the woman arrived within five to seven minutes. He gave basic and advanced life support for about 30 minutes before declaring her dead. He wrote to the police and the Civil Surgeon the same day.
Police Inspector Bankar lodged the complaint on behalf of the State. The Tahsildar inspected Nirmal Nursing Home with a doctor and panchas the next day. A sonography machine was sealed and a patient register seized, in which a pancha witness later identified Kusumbai's name at serial number 123.
What the autopsy found, and did not
The post-mortem was done at Dhule on 23 June 2012 by a team that included Dr Ajit Pathak. They found about 1.5 litres of blood and clots in the peritoneal cavity, a 2 cm by 2 cm hole at the uterovesical pouch on the right side, and haematoma in the broad ligament on both sides.
There were blood clots in the uterine cavity, two cotton gauze pieces soaked in blood, and blood on her feet and palms. Stretch marks suggested pregnancy, and an old scar showed a previous caesarean. The team gave the cause of death as post-abortal haemorrhage and shock due to uterine perforation.
Cross-examination drew out a long list of gaps. No foetus or placental tissue was found, the placental site was not located, and the cervix was uninjured. No blood or urine sample was sent to confirm pregnancy.
The surgeon accepted that a perforation can be caused by an instrument, can be spontaneous, or can be a scar rupture, and that the report did not say which. He found no traces of sonography gel, vaginal drugs, anaesthesia or injected drugs. He also accepted that the post-mortem said nothing about medical negligence.
Dr Patil, for his part, conceded that the woman was not bleeding when he examined her. Asked why he believed an abortion had been done, he said he had assumed it because the appellant referred her.
The defence: no pregnancy, no clinic, politics
Ms Rashmi Kulkarni argued the appeal for Dr Totla. Mr S. M. Ganachari, Additional Public Prosecutor, appeared for the State.
Ms Kulkarni said the prosecution had not proved the pregnancy itself. Endomyometrium congestion, the only microscopic sign relied on, had several other causes. There was no sonography report, no surgical instrument or termination kit seized, and the first police documents did not mention an abortion at all.
She argued there was no evidence the appellant ran Nirmal Nursing Home. It stood in the name of her sister-in-law, and the appellant was then a government medical officer at the Rural Hospital, Erandol. Her name did not appear in the seized register, and the original register was not on the record.
Dr Patil's account was attacked as unreliable. The spot panchanama of his hospital mentioned no oxygen or life-support equipment, no call records proved the phone referral, and his intimation to police showed admission and death both at 5 pm.
The husband, she said, had told a consumer forum he knew of the pregnancy but told the trial court he learnt of it from the appellant. He had not mentioned the Rs 10,000 to police. The Tahsildar claimed to have seen the body at Erandol on 23 June, when the autopsy had already been done at Dhule that morning.
Finally, she alleged a politically motivated case. The husband was a former sarpanch and an active Shiv Sena member, and the investigating officer admitted that local political figures had gathered outside Dr Patil's hospital after the death.
The prosecutor answered that the husband and the relative were consistent, the register entry was exhibited, and the medical team was unanimous on the cause of death. The appellant had given evasive answers and flat denials when questioned under Section 313 of the Code of Criminal Procedure.
A clinic she never disowned before
Justice Waghwase treated the link to the nursing home as the foundation of the appeal. He found the husband and Kalpanabai consistent that Kusumbai was taken to the appellant, examined by her and kept for about seven hours. He accepted that the investigating officer had been negligent in not recording the nursing staff's statements.
The decisive material came from another case. Dr Dipak Mahajan, Medical Superintendent of the Rural Hospital, had prosecuted the appellant under the PCPNDT Act in RCC No. 89 of 2012. She sought discharge only by challenging the authority's competence, relying on an inspection 17 days earlier that found no irregularity in her records.
She never denied her connection with the clinic in those proceedings. Having taken that stand, the court said, it “does not now lie in the mouth of appellant to disown any nexus” (para 26) with the nursing home.
On Dr Patil, the judge asked why the witness would depose falsely. Political links between him and the husband were not enough to discard a doctor who had promptly written to both the police and the Civil Surgeon. The discrepancy over the time of death on that letter did not wash away his evidence.
The register entry at serial number 123 still counted. The original had been destroyed with other case property, but the pancha had identified the entry at trial and the trial court had exhibited the document.
A signed deed and a cheque
The court called one document a peculiar feature of the case. Exhibit 97, a consent deed, bore the appellant's signature and her photograph. By it she accepted liability and handed the husband a cheque for Rs 9,00,000 as compensation.
The defence said the deed was signed under pressure and that only a copy was on record. Justice Waghwase rejected both points. The appellant had never complained of misuse of the cheque or told her bank not to honour it, and the original had been filed before the consumer forum, which explained why a certified copy was produced.
Why the team opinion held
On pregnancy and cause of death, the judge relied on the autopsy team acting together. Their opinion, he held, “cannot be discarded outright for want of evidence of fetal or placental parts” (para 35), when other findings pointed to a procedure on the uterus.
He pointed to the blood clots in the uterine cavity, the gauze pieces soaked in blood and the blood on her body. Since the site of the placenta varies from person to person, the failure to locate it did not rule out a procedure.
Timing weighed heavily. The woman spent barely half an hour at Dr Patil's hospital but about seven hours at the appellant's. The appellant therefore owed an explanation, which she did not give when questioned under Section 313.
Dr Patil's assumption that an abortion had been performed found support in the autopsy evidence. That the patient was not bleeding when he saw her made no difference, because she was sent to him only for resuscitation and not for any procedure.
Lapses that did not help the appellant
The court accepted that the investigation had gaps. No instruments or hospital documents were seized, and the rickshaw driver was never questioned. It held that no advantage accrued to the appellant from these failures.
The silence of the first police record on abortion was not fatal either. An accidental death report is only information about a death, and Dr Patil had explained the referral in his evidence. The missing receipt for Rs 10,000 could not outweigh the evidence of the husband, the relative and the two doctors.
The appellant had also relied on the Supreme Court's ruling in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1, on criminal negligence by doctors. Justice Waghwase called this a self-contradictory stand, since her primary case was that she had nothing to do with the hospital or the death.
On the political angle, the judge said the husband had taken his wife to the appellant trusting her, and had no reason to implicate her falsely. Sharing a political faction with Dr Patil was no ground to doubt him in a case concerning a woman's death.
Order
The court found no error, illegality or patent perversity in the trial court's acceptance of the prosecution case on Sections 304 Part II, 312, 314 and 315 of the IPC and Sections 5(3) and 5(4) of the MTP Act. The criminal appeal was dismissed.
The appeal was reserved on 16 October 2026 and pronounced on 31 October 2026.