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2006 DIGILAW 77 (CHH)

Doctor Arun Dewangan v. State of Chhattisgarh

2006-02-08

D.K.DESHMUKH

body2006
ORDER 1. This Criminal Revision is directed against an order dated 21-12-2005 passed by Smt. Rajni Dubey, 1st Addl. Sessions Judge, Rajnandgaon, District Rajnandgaon in Sessions Trial No. 100/2005 whereby charge under Section 304, Part-II of the I.P.C. was framed against the applicant. 2. Brief facts of the case as disclosed by the first information report lodged by Dhal Singh Chandel on 21 -4-2005 at P. S. Chikhli, District Rajnandgaon are as follows : Dhal Singh Chandel runs a medical stores in Chikhli. His wife Smt. Madhu alias Preeti Chandel had undergone a Caesarian operation about 5 years prior to the incident and was blessed with a daughter. On 28-3-2005 Smt. Madhu Chandel was having full term pregnancy again and was undergoing treatment of Gynecologist Dr. Smt. Asha Thomas of Christian Fellowship Hospital. At about 9 a.m. on 28th March, 2005 Smt. Madhu Chandel started having labour pains. Dhal Singh Chandel was about to take his wife to the Christian Fellowship Hospital for delivery. At that time, the applicant-accused Dr. Arun Dewangan, who runs a charitable hospital nearby came to the house of Dhal Singh Chandel and told him not to go to the hospital as he would very comfortably get the delivery of Smt. Madhu done at home itself. Dhal Singh knew Dr. Dewangan since long and had great respect for him. The applicant-accused was also on visiting terms to his house. Dhal Singh requested that since the first delivery was by Caesarian, he did not want to take any risk and wanted to take his wife to the hospital. However, the applicant-accused with great confidence said that Smt. Madhu was not in a condition to be shifted to the hospital and he would set things right in 10 minutes. On this, Dhal Singh Chandel agreed to the offer of the applicant-accused to get the delivery of his wife done at home. 3. Smt. Madhu who was undergoing labour pains was in sheer agony. The accused-applicant gave 5-7 heavy dose pain killer injections to her one by one which aggravated the pain. At about 4.00 p.m., the accused-applicant started pressing the Uterine portion of the abdomen and full term male child weighing 4 kgs. was delivered. The applicant asked Dhal Singh to immediately take the child to a Child Specialist. Within no time, Dhal Singh took his new born male child to a clinic of Child Specialist Dr. At about 4.00 p.m., the accused-applicant started pressing the Uterine portion of the abdomen and full term male child weighing 4 kgs. was delivered. The applicant asked Dhal Singh to immediately take the child to a Child Specialist. Within no time, Dhal Singh took his new born male child to a clinic of Child Specialist Dr. Narendra Gandhi who found that the child was in gasping respiratory condition and died within about 20 minutes. Smt. Madhu was admitted at United Hospital from 28-3-2005 as a case of third degree perinial tear (home delivery) and was discharged on 2-4-2005. After considerable lapse of time, Dhal Singh Chandel lodged a written complaint to the S.H.O.P.S. Chikhli, District Rajnandgaon on 21-4-2005. Certificate of Dr. Narendra Gandhi was obtained which showed that on 28-3-2005 at 6.15 p.m. a male child born to Smt. Madhu Chandel was brought in gasping respiratory condition and had swelling on the head i.e. Caput Succedaneum. The child died at 6.35 p.m. and was handed over to the parents at 7.00 p.m. Probable cause of death was opined to be possibly Hypxic Ischiemic Encapalopathy Asphyxia during birth. Statement under Section 161 of Smt. Madhu Chandel also reveals that she was in severe pain and agony which got aggravated when the applicant-accused had given 5-7 injections repeatedly. At about 4.00 p.m., the accused-applicant by pressing and squeezing the uterine portion of the stomach got the delivery of a full term male child done and immediately asked her husband to take the child to a Child Specialist. 4. On the basis of above facts, the learned trial Judge framed charge under Section 304, Part II of the I.P.C. against the accused-applicant. Shri Koshtra, learned Counsel for the applicant, has placed reliance on Dr. Suresh Gupta v. Govt. of N.C.T. of Delhi and Anr. and argued that at the most the facts revealed by the prosecution could prima facie constitute an offence under Section 304(a) of the I.P.C. but in no case under Section 304, Part II of the I.P.C. He also placed reliance on Jacob Mathew v. State of Punjab reported in 2005 AIR SCW 3685 : 2005 Cri LJ 3710 to support his arguments that at the most it was a case of medical negligence and could in no case constitute culpable homicidal not amounting to murder. On the other hand, Shri Ashish Shukla, learned Counsel appearing for the State opposed this revision, though formally. 5. For attracting Section 304, Part II of the I.P.C, it must be shown that the act committed by the accused-applicant amounted to culpable homicide not amounting to murder. Culpable homicide is defined in Section 299 of the I.P.C. as under : 299. Culpable homicide.- Whoever causes death by doing an act with the intention of causing death, or with the intention of causig such bodily injury as is likely to casue death, or with the knowledge that he is likely by such act to cause death, commits the offence of cupable homicide. Explanation 1.- A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death. Explanation 2.- Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented. Explanation 3.- The causing of the death of child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born. In order to bring an act within the ambit of culpable homicide, it must be shown that a person has caused death by doing an act and he had done so : (i) with the intention of causing death or, (ii) with the intention of causing such bodily injury as is likely to cause death; or (iii) with the knowledge that he is likely by such act to cause death. 6. In the present case, it cannot be said that the applicant-accused undertook to conduct the delivery of Smt. Madhu alias Preeti Chandel with the intention of causing death of the child in her womb or with the intention of causing such bodily injury to the child as is likely to cause death of such child. 7. 6. In the present case, it cannot be said that the applicant-accused undertook to conduct the delivery of Smt. Madhu alias Preeti Chandel with the intention of causing death of the child in her womb or with the intention of causing such bodily injury to the child as is likely to cause death of such child. 7. Thus, if by giving heavy dose of pain killer injections or by pressing or squeezing of stomach of Smt. Madhu, the applicant-accused would have caused the death of child inside the mother's womb, it would have been covered under Explanation 3 and would not have amounted to a homicide. In this case, the child was born alive. It is also apparent from the documents that no sooner the child was born alive, the applicant-accused asked Dhal Singh Chandel to take the child immediately to the Child Specialist. Once a child was delivered alive, the applicant-accused did nothing to cause the death of the child. The certificate of Dr. Narendra Gandhi also clearly shows that the male child was brought before him on 28-3-2005 in a living condition though the child was in a gasping resiratory condition. It is thus clear that the child was alive till then and died within 20 minutes after examination by him. Thus, the act of the applicant-accused could not amount to culpable homicide not amounting to murder. 8. The written complaint lodged by Dhal Singh Chandel clearly shows that the complaint was lodged more than three weeks after the death of child. It also shows that since he knew Dr. Arun Dewangan and respected him, he allowed him to conduct the delivery of his wife at home. There is nothing in the written complaint to show that the applicant-accused had demanded any money for undertaking the delivery. So far as the act of giving 5-7 pain killer injections consecutively by the appellant-accused to Smt. Madhu is concerned, there is no medical opinion on record to show that these injections were usually not given to relieve the pain or were detrimental to the foetus. The only allegation is that the applicant-accused at about 4.00 p.m. repeatedly pressed and squeezed the stomach of Smt. Madhu thereby inducing the delivery of male child. The complaint itself shows that the appellant-accused runs a charitable hospital. The registration certificate filed by the prosecution also shows that applicant-accused is a "Vaidya Visharad". The only allegation is that the applicant-accused at about 4.00 p.m. repeatedly pressed and squeezed the stomach of Smt. Madhu thereby inducing the delivery of male child. The complaint itself shows that the appellant-accused runs a charitable hospital. The registration certificate filed by the prosecution also shows that applicant-accused is a "Vaidya Visharad". It appears prima facie that not being a Gynecologist, the applicant-accused was not qualified to conduct the delivery of Smt. Madhu and committed a grossly rash and negligent act in administering heavy doses of pain killer injections and by squeezing and applying force on the stomach of Smt. Madhu Chandel. Thus, the act of the applicant-accused was an act of high degree of gross negligence and satisfies the test of gross negligence as laid down in Jacob Mathew v. State of Punjab reported in 2005 AIR SCW 3685 : 2005 Cri LJ 3710. Knowing fully well that the first delivery of Smt. Madhu was through a Caesarian operation and that she was undergoing treatment of a Gynecologist, the applicant-accused by insisting upon Dhal Singh Chandel, not to shift Smt. Madhu Chandel to the hospital and to get the delivery done at home at his hands and thereafter by giving high doses of pain killer injections and pressing and squeezing the uterine portion of the stomach of Smt. Madhu was an act of high decree of negligence or rashness on the part of the appellant-accused, who was not a qualified Gynecologist. The Certificate issued by Smt. Indira Chelani also shows Smt. Madhu Chandel had sustained a high degree perinial tear due to a faulty delivery. The certificate issued by Dr. Narendra Gandhi also shows that the male child born to Smt. Madhu Chandel had sustained a swelling on the head which in medical terms and called Caput Succedaneum and death of the male child was due to Hypxic Ischiemic Encapalopathy birth asphyxia. Prima facie it could therefore be said that due to over dose of pain killer injections and due to squeezing and excessive presure applied by the applicant-accused on the uterine portion of the stomach of Smt. Madhu Chandel to induce delivery the injury on the head of the male foetus and caused which resulted in Caput Succidomcum and Hypxic Ischemic Encapalopathy birth asphyxia. Therefore, the act of applicant-accused prima facie shows gross negligence or rashness of such a high degree as a to indicate a mental state which can be described as totally apathetic towards the patient. Such gross negligence is punishable under Section 304A of the I.P.C. as held in Dr. Suresh Gupta v. Govt. of N.C.T. of Delhi and Anr. . 9. In Juggankhan v. State of M.P., the accused was a registered Homoeopath. He administered 24 drops of stramonium and a leaf of dhatura to a patient suffering from guinea worm without studying their effect, due to which the patient died of poison. It was held by the Apex Court that the applicant-accused was guilty under Section 304A and not under Section 302, I.P.C. It was also held that the prosecution having been failed to establish that the dose given to the deceased was necessarily fatal, Section 299, I.P.C. had no application and it could not be held that the accused administered the stramonium drops and dhatura with the knowledge that he was likely to cause death of the deceased. In that case, it was held that the act of the accused was a rash and negligent act in prescribing poisonous medicines without studying their probable effect. In the instant case also, the act of the applicant-accused, not being a Gynecologist, in applying the pressure over and squeezing the uterine portion of the stomach of Smt. Madhu to induce delivery was an act of gross negligence resulting in the death of the child after being delivered alive. 10. As a result of the foregoing discussion, it is clear that no prima facie case under Section 304, Part II of the I.P.C. exists against the applicant-accused. The impugned order dated 21-12-2005 framing charge under Section 304, Part II of the I.P.C. against the applicant-accused cannot therefore be sustained under law. 11. In the result, this Criminal Revision partly succeeds. Order dated 21-12-2005 framing charge under Section 304, Part II, I.P.C. against the applicant-accused is set aside. Since a prima facie case under Section 304A, I.P.C. exists against the accused applicant, the learned trial Judge shall frame charge accordingly against the accused-applicant and proceed thereafter in accordance with law.