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2007 DIGILAW 807 (ORI)

Dr. Sunil Kumar Padhy v. State of Orissa

2007-10-12

PRADIP MOHANTY

body2007
JUDGMENT PRADIP MOHANTY, J. — This revision has been preferred against the order dated 09.03.2007 passed in Sessions Case No. 71 of 2006 by the Addl. Sessions Judge, Titilagarh framing charge against the petitioner under Section 304 Part I IPC. 2. Fact of the case, in brief, is that on 03.12.2003 one Ajaya Kumar Ray lodged an FIR before the I.I.C., Titilagarh Police Station that his son, Sachin Kumar Ray, for fracture on his hand, was under the treatment of the petitioner, who was then serving as Asst. Surgeon, S.D. Hospital, Titilagarh. On the advice and prescription of the petitioner, two injections were given to his son on 01.12.2003. As the condition of his son became serious, the informant took him to Dr. Padhi, who advised him to give ice message. But seeing the condition of his son further deteriorating, informant brought him to the hospital at 5 P.M. on 02.12.2003 and admitted him as an indoor patient. Dr. B.B.Naik examined his son and advised him to shift the patient to D.H.H., Bolangir. But, on the way near Phapsi his son expired. The informant alleged that due to negligence of the petitioner his son expired. The informant also suspected that the injections administered to his son might have contained some poisonous substance. After due investigation, final form was submitted against the petitioner under Section 304 IPC. After commitment of the case, the Addl. Sessions Judge, by the impugned order, framed charge under Section 304 (I) IPC against the petitioner. 3. Learned counsel for the petitioner submitted that there was no material before the trial Court to frame charge under Section 304 (I) IPC inasmuch as the medical evidence shows that the cause of death was due to gas gangrene. The staff nurse of Titilagarh S.D.Hospital, who had administered the injection to the deceased, in her statement recorded under Section 161 Cr.P.C. has stated that the said injections were meant for pain killing. However, the informant, the aunt of the deceased, the mother of the deceased and the friend of the deceased in their 161 state¬ment have stated that the deceased die to the negligence of the petitioner. Learned counsel further submitted that the petitioner is a doctor and while discharging his duty as such, the deceased came to him and complained of sustaining fracture on his hand and also of the pain on his hand. Learned counsel further submitted that the petitioner is a doctor and while discharging his duty as such, the deceased came to him and complained of sustaining fracture on his hand and also of the pain on his hand. Being a doctor, the petitioner performed his duty by prescribing to administer NAC injection, which is nothing but a pain killer, to the petitioner. Thereaf¬ter, the staff nurse of that hospital administered the injection as brought by the patient. Learned counsel further submitted that no sanction order has been obtained by the prosecution. There¬fore, he prays for quashing of the impugned order. 4. Mr. Behera, learned Addl. Govt. Advocate vehemently contended that there are ample materials against the petitioner. Names of eighteen witnesses have been mentioned in the charge sheet. The statement of the informant, the mother of the de¬ceased, the aunt of the deceased and the friends of the deceased as well as the statement of the staff nurse and other witnesses statement is sufficient to frame charge under Section 304 (I) IPC. He further contended that sanction order can be produced at any stage of the trial. 5. Perused case diary, post-mortem report and the report of the Professor, FMT. In the instant case, the doctor who con¬ducted the post-mortem examination opined that the cause of death is due to gas gangrene. Dr. B.B.Nayak stated in his 161 state¬ments that the deceased had developed gas gangrene. Professor FMT Department, VSS Medical College, Burla opined that NAC is a pain killer injection. He further opined that NAC injection was not responsible for the death of the patient. The staff nurse of the Sub-Divisional Hospital, Titilagarh also stated in her 161 statements that as per prescription of the petitioner, she administered the injection. She also stated that NAC injection is meant for pain relief. On the other hand, the 161 statements of the informant, aunt, mother and friends of the deceased reveal that due to negligence of the petitioner, the deceased died. 6. In order to frame charge under Part-I of Section 304 IPC, there should exist a prima facie case that the act would have amounted to murder, but for its having fallen within one of the Exceptions to Section 300. 6. In order to frame charge under Part-I of Section 304 IPC, there should exist a prima facie case that the act would have amounted to murder, but for its having fallen within one of the Exceptions to Section 300. In the instant case, the petition¬er being a public servant, at the time of framing charge against him under Section 304, Part-I, IPC, it is to be seen whether the case falls under Exception 3 to Section 300 IPC, that is to say, whether the petitioner caused the death of the deceased by doing an act which he, in good faith, believes to be lawful and neces¬sary for the due discharge of his duty and without ill-will towards the deceased. In the instant case, there is nothing to infer that the petitioner had the intention of causing the death or such bodily injury as is likely to cause death of the de¬ceased. Moreover, the act of prescribing NAC injection (which is a pain-killer injection according to the doctors’ opinion) for the patient, which was administered by the staff nurse, cannot by any stretch of imagination come within the purview of Part-I of Section 304 IPC. It may be a case of medical negligence falling under Section 304-A IPC. Therefore, the trial Court has erred in framing charge under Section 304, Part I, IPC against the peti¬tioner. 7. For the above reasons, this revision is allowed, the impugned order is set aside and the matter is remitted back to the trial Court for reconsideration regarding framing of charge. It is made clear that expression of any opinion is for disposal of this case alone. Revision allowed.