Research › Search › Judgment

Chhattisgarh High Court · body

2009 DIGILAW 63 (CHH)

VIDYUT KUMAR v. STATE OF C. G.

2009-02-25

T.P.SHARMA

body2009
ORDER 1. This petition is directed against the order dated 4.9.2004 passed by the Additional Sessions Judge (FTC) Mungeli, in Sessions Trial No. 267/2004 framing charge against the applicant for the offence punishable under Section 304 of the Indian Penal Code. 2. The order is challenged on the ground that without there being any material collected by the prosecution relating to the offence under Section 304 of the Indian Penal Code the Court below has committed an illegality in framing charge against the applicant. 3. Case of the prosecution in briefis that the applicant is an Ayurvedic doctor registered in the Madhya Pradesh Ayurvedic Tatha Unani Chikitsa Paddhati and Naturopathi Board, Bhopal. Deceased Jagrati Das was suffering:&om vomiting and loose motion and he was taken to the applicant by his relatives for treatment. Applicant gave him some tablets and intravenous saline. After sometime he fell down and died. Merg was registered. Dead body was sent for autopsy and team of doctors opined that cause of death was shock as a result of drug induced anaphylactic leading to cardio respiratory arrest. After completion of investigation charge sheet was filed against the applicant. 4. Heard counsel for the parties and perused the material available on record including the order impugned. 5. Counsel for the applicant submits that the applicant is a registered doctor and though he is not competent to administer allopathic medicines, the prosecution has not collected any material to show that he acted in such a manner which resulted in the death of Jagrati Das. He further submits that in the absence of any such material the charge under Section 304 is not made out against the applicant. He fairly submits that at the most the act of the applicant may fall under Section 304 of the Indian Penal Code for causing death by negligence. He placed reliance on the decision of the High Court of Madhya Pradesh in the matter of Dr. Khusaldas Pammandas Vs. State] in which it has been held that Hakim ignorant of knowledge administered Penicillin injection for treatment resulting in death, the offence is punishable under Section 304-A of the Indian Penal Code. Further reliance is placed on the decision of High Court of Madhya Pradesh in the matter of Ghanshyamdas Bhagwandas Vs. Khusaldas Pammandas Vs. State] in which it has been held that Hakim ignorant of knowledge administered Penicillin injection for treatment resulting in death, the offence is punishable under Section 304-A of the Indian Penal Code. Further reliance is placed on the decision of High Court of Madhya Pradesh in the matter of Ghanshyamdas Bhagwandas Vs. State of Madhya Pradesh2 in which it has been held that there must be direct nexus between death and the rash and negligent act of the accused. Physician giving Coramine injection to patient of bronchial asthma - post mortem not showing injection as proximate cause of death - charge under Section 304-A is not tenable. Reliance is placed on the decision of the Apex Court in the matter of Jacob Mathew Vs. State of Punjab and another in which it has been held that the doctor who administers medicine known to or used in a particular branch of medical profession impliedly declares that he has the knowledge of that branch of science, the prosecution is required to collect the material to show that he has committed gross negligence which resulted in the death of the patient. In the absence of any material no charge under Section 304A of the Indian Penal Code is sustainable. A mere deviation from normal professional practice is not necessarily evidence of negligence. 6. On the other hand counsel for the respondent/objector submitted that the trial Court is the best authority to decide an appropriate charge at an appropriate stage of trial and in suitable cases suitable application may be filed before the trial Court for alteration of the charge in accordance with Section 216 of the Code of Criminal Procedure and therefore, the revision is liable to be dismissed. He further submits that the applicant is not competent to treat the patient by allopathic system of medicine but he is only competent to treat the patient by Unani and Ayurvedic system of medicine. He further submits that the applicant has intentionally and knowingly treated the patient by using the allopathic medicine for which he was not competent. His act squarely falls within the ambit of knowingly and intentionally causing the death of the patient punishable under section 304-A of the Indian Penal Code. He placed reliance on the decision of the Apex Court in the matter of State of Maharashtra Vs. His act squarely falls within the ambit of knowingly and intentionally causing the death of the patient punishable under section 304-A of the Indian Penal Code. He placed reliance on the decision of the Apex Court in the matter of State of Maharashtra Vs. Salman Salim Khan and another in which it has been held that framing of proper charge can be best decided by the trial Court at an appropriate stage of trial. Further reliance is placed on the decision of Apex Court in the matter of Smt. Savita Garg Vs. Director, National Heart InstituteS in which it has been held that in case of charge of negligence on the part of the doctor, the burden is on the hospital to justify that there was no negligence on their part. Further reliance is placed on the decision of Madras High Court in the matter of Dr. Ajith and another Vs. Stafe6 in which it has been held that deliberate conduction of surgery in store room which was ill-equipped for such major surgery is not mere negligent but the offence punishable under section 304 of the Indian Penal Code. 7. In this case, according to the case of the prosecution deceased Jagrati Das was treated by the applicant who was not a registered allopathic medicine practitioner. He was registered for Ayurvedic and Unani system of medicine. However, he administered medicine (entizol forte omepren) and intravenous saline. Patient died due to shock as a result of drug induced anaphylactic leading to cardio respiratory arrest. Prosecution has not collected any material to show that the applicant has intentionally or knowingly administered the medicine with an intention to cause homicidal death of the Jagrati Das, and as a result of which he died. However, the prosecution has collected sufficient material to show that the applicant was not an expert in the allopathy branch of medicine and as such was not competent to administer allopathic medicine to treat the patient. Prosecution has not collected any material to show that the applicant was reckless while administering the allopathic medicine including intravenous saline to the patient which ultimately resulted in his death. At the most the act of the applicant falls within the ambit of causing death of a person by his negligent act punishable under Section 304-A of the Indian Penal Code. 8. At the most the act of the applicant falls within the ambit of causing death of a person by his negligent act punishable under Section 304-A of the Indian Penal Code. 8. The Court below has not considered the material which is not prima facie sufficient for framing the charge against the applicant and thereby has committed an illegality. Accordingly the revision is allowed. Order framing charge against the applicant under Section 304 IPC is set aside. Court below is directed to frame the proper charge under section 304.,A IPC in accordance with the provisions of Section 228( 1)( a) of the Code of Criminal Procedure. Revision Allowed.