Judgment A. H. JOSHI, J. ( 1 ) THE accused was tried in Sessions Case No. 101 of 1985 by the 2nd Additional Sessions Judge, Chandrapur under sections 314 and 316 of Indian Penal Code and 33 (1), (2), 36 (1), (2) of Maharashtra Medical Practitioners Act, 1961 and section 7 (3) of the Medical Termination of Pregnancy Act, 1971. ( 2 ) THE learned Sessions Judge convicted the accused for the offence punishable under sections 314 and 316 of the Indian penal Code and sentenced to suffer R. I. , for five years and fine of Rs. 1000/- and in default R. I. , for four months. The accused was also convicted for the offence punishable under section 33 (1), (2) of Maharashtra Medical Practitioners Act, 1961 and sentenced him to pay fine of Rs. 500/- and in default R. I. , for two months. The accused was further convicted for the offence punishable under section 36 (1), (2) of Maharashtra Medical Practitioners Act, 1961 and sentenced to pay fine of Rs. 500/ - and in default R. I. , for two months and under section 7 (3) of Medical Termination of Pregnancy Act, R. I. , sentenced to pay fine of Rs. 500/- and in default, R. I. , for two months. ( 3 ) THE learned Sessions Judge, chandrapur framed charge against the accused to the effect that the accused with intent to cause miscarriage of Sau shantabai Satpute, a pregnant woman, without her consent, gave medicinal treatment and made unskilled and rough efforts to take out the foetus from the womb, which caused the death of unborn child as well of said Shantabai Satpute, and was therefore, liable for being tried for causing the death of an unborn child of Shantabai Satpute. Thirdly, the accused not being a doctor gave medical treatment and surgical treatment to the patient without being registered as such under different Maharashtra State acts and registeres prepared and maintained under the Indian Medical Council act. The accused was further charged for using title description letters or abbreviations which imply that the accused hold a degree, diploma, licence or certificate or any other like award as accuseds qualification to practice any system of medicine, added to accuseds name dr. L. DSC, R. M. P. M. S. M. S. R. No. 1107 and below it written in Marathi Balantan, Gupta Regi. L. DSC, R. M. P. M. S. M. S. R. No. 1107 and below it written in Marathi Balantan, Gupta Regi. Lahan mul, Dantkshay, General Surgeon Specialist and therefore, the accused had committed offence punishable under sections 314 and 316 of the Indian Penal Code, under section 33 (1) and (2) of the Maharashtra medical Practitioners Act, 1961 and under section 36 (1) and (2) of the Maharashtra medical Practitioners Act, 1961 respectively. ( 4 ) THE charge framed against the accused can be divided into two parts (1) relating to illegal medical practice by the accused and (2) about unauthorised termination of pregnancy causing death of the foetus and death of Shantabai. ( 5 ) THE prosecution has examined as many as 21 witnesses. Out of these witnesses, witness No. 5 Bhaurao Goma dhambari, P. W. 6 Abdul Khalil, P. W. 7 madhukar Narayan Junghare and P. W. 10 vishwas Ramrao Lahamge are the witnesses of various Panchanamas. P. W. 12 Sudhakar and P. W. 14 Brijbanadue Yadav are the Police Constable whose evidence is of formal nature, P. W. 19 Prakash is the photographer, P. W. 20 Jamadarsingh and P. W. 21 suresh are the Police Officer who have conducted the investigation. The facts relating to investigation, panchanama etc. , are coherently and consistently proved. There is no challenge to the evidence brought on record through these witnesses on the ground of want of proof of facts proved thereby. It is, therefore, not necessary to discuss the evidence of these witnesses. ( 6 ) REST of the evidence is divided in two parts of the charge. P. W. 2 Atmaram tudankar Administrator by the Government on the Board of Homeopathy and Biochemic system of medicine the witness No. 8 mohammad Usmani Office bearer of maharashtra Council of Indian Medicines, p. W. 17 S. A. Gadre, Registrar of maharashtra Medical Council, P. W. 18 abhimanyu, former Registrar of Maharashtra State Dental Council, are the witnesses who have been examined to prove that the accused is not a registered Medical Practitioner, and he does not hold requisite qualification, nor that on the basis of registration which he claims to have possessed in the State of Bihar, that he has registered himself as a Medical Practitioner under the provisions of Maharashtra Medical Practitioners Act or any other law. ( 7 ) ON perusal of evidence of these witnesses, it is seen that they have proved that the name of the petitioner is not entered in the register of Medical Practitioners maintained by the different Medical Councils. The accused has not stepped into the witness box and, therefore, the facts proved by these witnesses namely that the accused does not have right of undertaking medical practice is duly proved. ( 8 ) THE prosecution witness No. 1 is brought to prove that in past, he had taken his wife for treatment to the Clinic of the accused and that the accused had given her medical treatment which had failed and ultimately she was taken to the Government hospital, Chandrapur. The complainant in this case P. W. 9 Sudhakar has also proved, apart from other facts, that the accused is practising in medicines. The Panch witnesses who have witnessed the name board of Clinic of the accused and various medicines and surgical instruments were recovered from the Clinic of the accused do sufficiently prove that the accused was undertaking medical practice at Chandrapur in the State of Maharashtra. ( 9 ) THE next question that arises for consideration in this appeal is remaining part of the charge pertaining to the treatment given by the accused to Shantabai wife of the complainant, and further complications, and as to whether on the basis of evidence that has come before the Court, the accused can be held guilty of the offences charged. ( 10 ) THE witnesses are namely P. W. 3 saraswati Dhandekar mother of deceased shantabai, Dhrupadabai outside witness p. W. 4 and complainant P. W. 9 have been examined to prove that the complainants wife Shantabai was taken to the Clinic of the accused, the accused had administered some treatment and on his failure to properly treat her and occurring of complications, she was removed from his Clinic to the Government Hospital. ( 11 ) OTHER witnesses pertaining to medical treatment later on given to deceased are p. W. 11 Dr. Sarla Murke and two doctors who have undertaken post mortem examination are P. W. 13 Dr. Jaikisan Murke and p. W. 16 Dr. Keshar Taksande. ( 11 ) OTHER witnesses pertaining to medical treatment later on given to deceased are p. W. 11 Dr. Sarla Murke and two doctors who have undertaken post mortem examination are P. W. 13 Dr. Jaikisan Murke and p. W. 16 Dr. Keshar Taksande. ( 12 ) AFTER appreciation of evidence of these witnesses, this Court reaches a conclusion that considering the sum effect thereof :- (I) It is difficult to subscribe to the conclusion arrived at by the trial Court that the offence under sections 314, 316 of the Indian Penal Code as well as offence under section 4 r/w section 7 (3) of Medical Termination of pregnancy Act, 1971 is proved. (II) The offence for which the accused is found guilty is under section 304-A of the Indian penal Code. It is also seen that the accused is guilty of offence punishable under sections 33 and 36 of Maharashtra Medical practitioners Act. REASONS ( 13 ) IT is a common testimony of P. W. 3 and P. W. 9 consists of facts leading to lodgment of FIR and the facts namely that deceased Shantabai had complained of excessive white discharge, initially, and later on she was not taken to doctor. The version of p. W. 9 Sudhakar Narayan Satpute as corroborated in the First Information Report reads as follows :-"after one year since the marriage, she begot a female baby in the Government hospital by undergoing the (Caesarean) operation. She experienced severe pain at the time of delivery. After that, my wife resided in her mothers house at village Murdoni up to six months. Then, again she came to me. At that time, her health was in good condition. From the period of about last eight days, she has been suffering from white (menstruation) discharge. The said disease is called Padar rog (i. e. Excessive white discharge) and I did not take her to the Doctor. The household treatment (herbakl) was being given to her. My mother-in-law had administered her (i. e. , to my wife) the solution of truck-rind of mango tree. This day 6-8-85, at 4. 00 Oclock in the early morning, all of a sudden, the health condition of my wife became serious. Hence, myself and the mother in law took my wife to the dispensary of Dr. Jaiswal, which is situated near "mahakali" temple. This day 6-8-85, at 4. 00 Oclock in the early morning, all of a sudden, the health condition of my wife became serious. Hence, myself and the mother in law took my wife to the dispensary of Dr. Jaiswal, which is situated near "mahakali" temple. At that time, the Doctor was not present but the compounder was present in the dispensary. Then the compounder went to the home of Doctor to call him. Then at about 5. 30 Oclock the Doctor came (in the dispensary ). He started providing medical treatment to her. " ( 14 ) IN oral evidence, P. W. 9 avoided telling all that he has narrated in the First Information Report, however, in the cross-examination, he admitted as follows :-"i do not know whether there was a board of one Mrs. Geetadevi on that dispensary. I took my wife in that dispensary as there was one lady doctor. For about 2 days my mother in law treated her by giving herbal medicine i. e. , a trunk-skin of mango tree for the disease of white discharge. She was suffering from white discharge since last 2 /3 months. The herbal medicine was given to her for about 2 days. It is correct that she was removed to hospital as her condition became serious. It is not true that, the accused doctor did not come in the early morning, till I left the dispensary. I gave my report orally and my mother-in-law narrated the the facts to the police. " ( 15 ) SIMILARLY, P. W. 3 Saraswati mother of deceased Shantabai admitted in the cross-examination that her daughter had complained of white discharge. She denied that she gave any herbal medicine, however, admitted that she had stated so before the police. This part of her cross-examination is as follows :-"8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . My statement was recorded by the police I stated before the police that, I received a telegram from my son in law Sudhakar mat my daughter was serious. My daughter had a white discharge problem. She was not treated for the said disease. It is not correct to say that. I gave her herbal-house made medicine. . . . . My statement was recorded by the police I stated before the police that, I received a telegram from my son in law Sudhakar mat my daughter was serious. My daughter had a white discharge problem. She was not treated for the said disease. It is not correct to say that. I gave her herbal-house made medicine. It is not true that I have stated before the police that I gave some homemade medicine to mv daughter. It is not correctly mentioned in my statement. I have not stated portion mark A of mv statement. " ( 16 ) IN so far medical evidence is concerned, testimony of P. W. 11 Dr. Sarla and p. W. 13 Dr. Jaikishan and P. W. 16 Dr. Keshav is to be taken into account. The description of the status of health of deceased shantabai which was seen by P. W. 11 is recorded by her in the medical case record. Relevant information thereof suggests that Vagina was infected and there was infected discharge and that she had delivered, however, body of foetus was cut, while head and placenta were retained. ( 17 ) THE post-mortem examination was actually conducted by Dr. Mrs. Taksande assisted by Dr. Jaikisan Murke. In the post mortem note as well as in oral evidence, what reveals is as follows :-"21. Abdomen :- walls : Intact peritoneum : Congested. Cavity : Contains Pus. "the time when the post-mortem examination was conducted is between 1 p. m. to 2. 15 p. m. on 7-8-85. It is also to be noted that Viscera has not been preserved. ( 18 ) AS to cause of death of Shantabai as well as foetus is quoted in the Post Mortem report as follows :" (1) Mother - in my opinion, the deceased died due to shock as a result of septic pelvic peritonitis and septi cemia. Secondary to mal-handling and retain products of conception. (2) Foetus- foetus died probably due to shock and hemarage as a result of the dislocation of the Head from the body at the level of 2nd and 3rd cervical vertibrae. " ( 19 ) AFTER hearing the submissions of both the sides, what this Court finds is as follows :- (a) It is nobodys say that Shantabai was taken to the Dispensary of the deceased for conducting abortion. " ( 19 ) AFTER hearing the submissions of both the sides, what this Court finds is as follows :- (a) It is nobodys say that Shantabai was taken to the Dispensary of the deceased for conducting abortion. (b) The witnesses are concurrent on the point that Shantabai had complained about excessive discharge. (c) Shantabai was treated by her mother by herbal medicines for about 3 days prior. (d) At about 4 Oclock, in the morning on 6-8- 2005, health of Shantabai became serious suddenly when complainant and his mother in law took Shantabai to Clinic of the accused. (e) Dr. Mrs. Sarla P. W. 11 has admitted in her cross-examination that the medicine referred to her for opinion pitocin and methergin are also used when there is excessive bleeding though both the medicines are also used for abortion, and these medicines are commonly available in the medical shops. (f) Dr. Mrs. Taksande has stated in her evidence that it would take about 8 hours time for formation of pus. It is seen from the testimony of P. W. 11 Dr. Sarla that she had noticed infection in vagina and the discharge was infected. Doctors conducting post-mortem noticed that pus formation was almost all over in the abdomen reaching it upto Ovaries. Such serious infection must have resulted into cause of death and when the patient was already serious and taken to the Clinic of Dr. Jaiswal, it would be improper to conclude on the available evidence that the complications occurred due to treatment. (g) The period during which prosecution has proved that Shantabai was being treated by the accused is somewhere between 5. 30 a. m. , to 1 p. m. , in the noon. The complications of formation of pus reaching the stage of scepticinia would not reach within about 6/2 hours. . (h) The death of foetus and the aggravation of complications cannot, therefore, be attributed to the accused. (i) Moreover, it cannot be said that the accused had any reason to treat the deceased for termination of pregnancy or cause it. (j) All that the accused has done is acted rashly and negligently in the matter of accepting case of deceased Shanta and treating her for which he had neither authority, nor skill. (i) Moreover, it cannot be said that the accused had any reason to treat the deceased for termination of pregnancy or cause it. (j) All that the accused has done is acted rashly and negligently in the matter of accepting case of deceased Shanta and treating her for which he had neither authority, nor skill. (k) Moreover, taking to the description of the foetus that it was not so well formed, and that well before he took up the case for treatment, the deceased had already become serious, and she was already suffering for a long time. (1) The complaint of white discharge, the possibility of life of the foetus having already come to an end cannot be ruled out. (m) The death of foetus and mal handling of removal of foetus can be attributed to herbal treatment given prior to admission of the patient to the Clinic of the accused. Such herbal treatment is admitted fact as a part of prosecution story. ( 20 ) IN this situation, the accused is not liable to be held guilty for offence under sections 314 and 316 of the Indian Penal Code. "21. Abdomen :- walls : Intact peritoneum : Congested. Cavity : Contains Pus. "the said conviction and sentence is, therefore, liable to be altered for offence punishable under section 304-A of the Indian Penal Code for being responsible for death due to rash and negligent act. Accused is also found guilty of offences punishable under sections 33 (1) (2) and 36 (1), (2) of maharashtra medical Practitioners Act, 1961. ( 21 ) UPON conviction, as aforesaid, the question of sentences arises. Learned Advocate for the appellant urged in support of lenient view in the background that since the accused has crossed 65 years of age and as he was having practising since he possessed valid registration certificate awarded to him under law as prevailing in State of Bihar, though he had failed to secure registration under Maharashtra Act, which is formal. Though some lenient view can be taken, nevertheless, the fact that the accused has acted in such a manner which has been proved to be an offence and his rash and negligent act was that of a man who claims some knowledge in the field and practised openly with a title as a doctor cannot be ignored. Though some lenient view can be taken, nevertheless, the fact that the accused has acted in such a manner which has been proved to be an offence and his rash and negligent act was that of a man who claims some knowledge in the field and practised openly with a title as a doctor cannot be ignored. ( 22 ) IN this situation, this Court is of the view that the ends of justice shall be made if the accused is directed to undergo :- (a) Simple Imprisonment for two years and to pay a fine of Rs. 25,000/- for offence punishable under section 304-A of I. P. C. , and six months S. I. , in the event of default in payment of fine. (b) The sentence in relation to sections 33 (1), (2) and 36 (1), (2) of Maharashtra Medical Practitioners Act, which is Rigorous Imprisonment is also modified to Simple Imprisonment. (c) Conviction and sentence under sections 314 and 316 of Indian Penal Code and section 7 (3) of Medical Termination of Pregnancy act, 1971 is set aside. ( 23 ) IN the event, the fine is paid, the amount be paid to the complainant Sudhakar. ( 24 ) IN the result, appeal is partly allowed and the judgment and order under appeal is modified in above terms. Appeal partly allowed.