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2011 DIGILAW 108 (AP)

V. Marie v. State of Andhra Pradesh

2011-02-08

GOPALA KRISHNA TAMADA

body2011
JUDGMENT (1) The petitioner herein was tried in CC No.39 of 2000 by I Additional Judicial First Class Magistrate, Warangal for the offence punishable under Section 304-A IPC. During the course of trial, PWs.l to 7 were examined and Exs.P1 to P5 were marked on behalf of the prosecution. DW1 was examined and no documents were marked on behalf of the accused. Having analysed the oral and documentary evidence, the trial Court, by its judgment dated 31.1.2003, came to the conclusion that the petitioner is guilty of the charged offence, and accordingly, convicted and sentenced her to suffer simple imprisonment for a period of two years. Questioning the judgment, the petitioner- accused filed Crl. A No.29 of 2003, and the learned Sessions Judge, Warangal, while concurring with the findings arrived at by the trial Court, dismissed the appeal and sentenced her to pay fine of Rs.5,000/- and also compensation of Rs.75,000/- to PW1 - wife of the deceased, instead of sentence of imprisonment. Challenging the judgment dated 17.3.2004, the petitioner has preferred the present criminal appeal. (2) The case of the prosecution in brief is that on 7.9.1997, at about 9.30 p.m., when the deceased-Guruvaiah, and his wife - PW1, were coming from the agricultural field, her husband was bitten by a snake, and he was brought to MGM Hospital, Warangal. As he was not treated properly and injection was not administered to him at the appropriate time, he died. On receipt of a complaint from PW1, the Inspector of Police registered a case in Cr.No.218 of 1999 against the petitioner-accused and after completion of investigation, charge sheet was filed. Sri A. Prabhakar Rao, learned Counsel for the petitioner-accused, has mainly contended that the death of the husband of PW1 was not solely on account of rash and negligent act on the part of the petitioner - V. Mary for the reason that at the relevant point of time, she was only working as Staff Nurse and not competent to treat the patients, who come to the hospital. According to the learned Counsel, the husband of PW1 was brought to hospital with a snake-bite, and as the injection was not readily available in hospital, the Doctor gave prescription to PWs. 1 to 3 and directed them to get the injection from medical shop. According to the learned Counsel, the husband of PW1 was brought to hospital with a snake-bite, and as the injection was not readily available in hospital, the Doctor gave prescription to PWs. 1 to 3 and directed them to get the injection from medical shop. When PWs.l to 3 returned stating that the injection was not available, the petitioner brought it to the notice of the Doctor about the availability of the injection in the hospital, meanwhile, the patient died, as such, the act of the petitioner cannot be said to be rash and negligent. He further contended that both the trial Court and the lower appellate Court, ought not to have accepted the evidence of PW3 for the reason that it is an afterthought and an improvement. (3) On the contrary, the learned Public Prosecutor has contented that on the instructions of the Doctor, it is the duty of the petitioner to inform the Doctor about the availability of anti-venom injection in the hospital and administer it to the patient. He further contended that even though the medicine was available in the hospital, it is only on the basis of the information furnished by the petitioner that the medicine is not available, the Doctor gave prescription directing PWs.l to 3 to get the medicine from any medical shop, and they informed the Doctor about its non-availability. Meanwhile, the petitioner found the injection in the hospital and tried to give it to the Doctor, but in the meantime, the patient died which clearly attracts the provisions of Section 304-A IPC. According to him, had the petitioner been diligent enough in searching for the injection at the appropriate time, probably the life of the husband of PW1 would have been saved. (4) In the light of the rival contentions put forth by both the learned Counsel, this Court has carefully analysed the entire material placed on record. Pw1, who is the wife of the deceased, deposed in her evidence that when she along with her husband was returning from agriculture field, he was bitten by a snake, and immediately, she rushed him to M.G.M. Hospital for treatment, where one Lady Doctor - Sharada informed her that the medicine for snakebite was not available in hospital and prescribed an anti-venom injection and asked her to get it from any nearby medical shop. Though she tried to secure the medicine, she could not get it as it was not available in the medical shop, as such, she returned to the hospital and informed the Doctor about its non-availability. In the meantime, the petitioner-Staff Nurse informed the Doctor that the medicine is available in the hospital, however Pw1's husband died. In fact, in chief-examination, she stated that her husband died due to the negligent act of the Doctor-Sharada. (5) The evidence of PW2, who is none other than the brother of the deceased, is also on similar lines. (6) PW3, a registered medical practitioner, who accompanied the deceased and PW1, deposed in his chief-examination that at about 7.00 p.m., on the date of the incident, the deceased, who suffered a snakebite, was brought to his clinic, and immediately they all shifted him to MGM Hospital for treatment, where the Doctor- Sharada gave prescription stating that anti-venom was not available in the hospital and directed PWs.l to 3 to buy it from any medical shop. They went for the medicine, but did not get it anywhere, so, they came back to hospital and informed the Doctor about its non-availability. In the meantime, the petitioner brought the anti- venom injection, which she found in the hospital itself, and tried to load it into the syringe, but the moment she was about to administer it to the husband of the petitioner, he died. PW3 stated that the anti-venom, though was available in the hospital, but based on the information given by the petitioner, the Doctor directed PWs.l to 3 to buy the medicine from any medical shop. Thereafter, the petitioner herself found it in the hospital, and when tried to administer it, the patient died. Having considered the evidence of PWs.l to 3 and the submissions made on behalf of the petitioner, this Court is of the opinion that the alleged rash and negligent act cannot be attributed to the petitioner. The evidence of PWs.l and 2 clearly rules out any negligence on the part of the petitioner. According to their evidence, when the patient was brought to the hospital, the Doctor said that anti-venom injection was not available in the hospital, and asked the patient's relatives to get it from any medical shop, and as the medicine was not available, they returned. According to their evidence, when the patient was brought to the hospital, the Doctor said that anti-venom injection was not available in the hospital, and asked the patient's relatives to get it from any medical shop, and as the medicine was not available, they returned. Then, the petitioner searched for the medicine in the hospital, found out and gave it to the Doctor. From the above, it is not known as to how any rash and negligent act can be attributed to the petitioner. Further, the evidence of PWs.1 and 2 is to the effect that the Doctor, who treated the patient, was negligent enough and the husband of PW1 died because of the her rash and negligent act. The prosecution, for obvious reasons, has not chosen to examine the Doctor-Sharada. In those circumstances, it is not possible to hold that the petitioner is rash and negligent. Even if the evidence of PW3 is accepted, it cannot be said that the negligent act of the petitioner in not searching and giving the injection at the earliest point of time to the Doctor for administering it to the patient, caused the death of the deceased. In my considered view, there must be direct nexus between the rash and negligent act and the death of the deceased. In other words, it is not enough for the prosecution to show that the petitioner's action was one of the causes for the death of the deceased and it must show that death is a direct consequence of the alleged rash and negligent act. Moreover, from the facts on hand, it is evident that the husband of PW1 was bitten by a snake and he was brought to hospital on 7.9.1997 at about 9.30 p.m., but the evidence of PW3 goes to show that the deceased was brought to his clinic at 7:00 p.m. for treatment. Thus, there is a gap of about 21/2 hours in bringing the patient to the hospital. Maybe, it is true that there is negligence on the part of the petitioner in not making available the injection at the appropriate point of time, but that is not the cause for the death. Thus, there is a gap of about 21/2 hours in bringing the patient to the hospital. Maybe, it is true that there is negligence on the part of the petitioner in not making available the injection at the appropriate point of time, but that is not the cause for the death. What Section 304-A IPC envisages is that causing of death by negligence, and as per this provision of law, whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment. At the cost of reputation, this Court states that from the above provision of law, there must be direct nexus between the rash and negligent act and the death. (7) For the foregoing reasons, this Court cannot hold that the death of the husband of PW1 was merely on account of the negligence on the part of the petitioner. (8) Hence, this criminal revision case is allowed setting aside the judgment dated 17.3.2004 delivered in Crl. A No.29 of 2003 on the file of the Sessions Judge, Warangal. Consequently, the accused is acquitted of the offence punishable under Section 304-A IPC, and the fine amounts, if any, paid by the petitioner, shall be refunded.