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2003 DIGILAW 616 (MP)

Usha Wadhawa v. State of M. P.

2003-04-25

S.L.KOCHAR

body2003
JUDGMENT The applicants who are practising doctors have filed this revision against the order dated 16.10.2002 of framing of charge passed by learned Judicial Magistrate First Class, Neemuch in Criminal Case No. 386/02 whereby framed charge under section 304-A of the Indian Penal Code. The prosecution case in nutshell, before the trial Court was that police of Police Station Neemuch has registered the offence punishable under section 304-A IPC against the applicants on 7.10.2000 at 9.43 p.m. On the basis of the written complaint, received from C.S.P. office submitted by complainant Smt. Saroj w/o Ashok Sharma, it is alleged by the prosecution that Ashok Sharma was admitted in the hospital of the present applicants for an operation of Appendicitis on 18.6.2000. The same was performed by applicant No. 2/Dr. Subhash Wadhawa and the applicant No. 1/Dr. Smt. Usha Wadhawa was also present in operation theatre. After operation, Dr. Subhash Wadhwa and his wife (Present applicants) were slightly perturbed as the operation led some complications in the stomach. The patient was advised by Dr. Wadhwa, to take him at Udaypur for treatment. Thereafter, the patient was taken to Ahamadabad and got him admitted in the Rajasthan hospital where he was treated. It is also alleged by the complainant that in applicant's' hospital, a different vein was cut instead of cutting appendicitis vein, by the doctor who performed an operation. The patient died in Rajasthan hospital on 27.6.2000. Thereafter, written report was lodged and the case was registered on 7.10.2000. Learned counsel appearing for the applicants relying on the judgment of the Supreme Court in the case of Rakesh Ranjan Gupta v. State of U.P. ( AIR 1999 SC 2115 ) submitted that in the charge sheet there is absolutely no material to make out a prima facie case for framing charge under section 304A IPC. The materials available do not disclose rash or negligent act on the part of the applicants while performing the operation. Against this, learned counsel appearing for the State has submitted that at the stage of charge, substantial allegations are required to be seen. According to him, there is sufficient material in the charge-sheet for framing of charge. The materials available do not disclose rash or negligent act on the part of the applicants while performing the operation. Against this, learned counsel appearing for the State has submitted that at the stage of charge, substantial allegations are required to be seen. According to him, there is sufficient material in the charge-sheet for framing of charge. Having heard learned counsel for the parties and perusing the entire chargesheet, this Court is of the opinion that there is no material available in the charge sheet for framing the charge under section 304A IPC to make out prima face case. The applicants are qualified doctors having their hospital in Neemuch town. The husband of the complainant was admitted in the hospital for undergoing operation of Appendicitis. Thereafter, complainant called Dr. Choudhari, who is not serving in applicant's hospital, has examined the patient Mr. Ashok Sharma. On examination, he has concurred the treatment given by Dr. Wadhwa. He has also advised for injection of one bottle of blood. The statement of this doctor has been recorded by the police. His statement regarding cutting of different vein is based on hear say evidence, therefore, the same is not helpful to the prosecution. He has stated that patient has died at Ahamadabad. Thereafter, he came to know that instead of cutting appendicitis vein, some other vein was cut by Dr. Wadhwa. This fact could be established by Post Mortem Report but after death in Rajasthan hospital at Ahamadabad, post mortem was not performed. Therefore, it could not be said that applicants have cut different vein other than appendicitis vein. It is clear from the statement of Dr. Sanjay, who has attended patient in this hospital. He has assigned reason that cause of death was due to failure of Cordo Respiratory System because of Septicemia. This doctor as well as Dr. Madan Mohan Mitra who treated Ashok Sharma in Udaypur have nowhere stated that different vein was cut. Dr. Madan Mohan resident of Udaypur has specifically, stated in his statement recorded on 26.6.2000 that without the advice of doctor, patient Ashok Sharma, was taken by his brother Satyanarayan at his own risk. The patient was suffering from infection of Paritonitis. He has also specifically stated that exact cause of death could be opined only after performance of autopsy. Dr. Madan Mohan resident of Udaypur has specifically, stated in his statement recorded on 26.6.2000 that without the advice of doctor, patient Ashok Sharma, was taken by his brother Satyanarayan at his own risk. The patient was suffering from infection of Paritonitis. He has also specifically stated that exact cause of death could be opined only after performance of autopsy. It was not got performed by the doctor of Rajasthan hospital at Ahamadabad where the patient was admitted, treated and died. The allegation of cutting of different vein than appendicitis, has been levelled by the complainant but the same has not been substantiated by any positive medical evidence. She is not an expert. She has not shown any source on which he was alleging so. The report was also lodged after more than 3 and half months. Apart from delay of lodging of report, there is no reasonable material in the charge-sheet to make out prime facie case regarding rash or negligent act of the applicants while treating patient Ashok Sharma in their hospital. After their treatment, he was treated a£ Udaypur and thereafter at Ahamadabad. Just after the operation, complainant called another doctor, Dr. Choudhari, who has not given any report or opinion about improper treatment which might amount rash or negligent act. As such this Court relying on the Judgment of the Supreme Court in the case of Niranjan Singh v. Jitendra Bhimraj Bija and Ors.( AIR 1990 SC 1962 ) and deem it fit and proper to set aside order of framing of charge. Consequently, this revision is hereby allowed. The order framing of charge is, accordingly, set aside and the proceedings pending before the Court below are hereby quashed.