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2013 DIGILAW 84 (KAR)

STATE OF KARNATAKA v. UDAY SHANKAR HARANJAL

2013-01-21

B.V.PINTO

body2013
JUDGMENT B.V. PINTO, J.-This appeal is filed challenging he judgment dated 13.8.2007, passed by the I Addl. Judicial Magistrate First Class, Bagalkot, in C.C. No. 10 10/1996, acquitting the respondent-accused of the offence punishable under Section 304A of IPC. 2. It is the case of the prosecution that on 20.11.1995 one patient by name Geeta Patil was taken to the nursing home of the accused viz., Dr. Shirur's Surgical and Maternity Nursing Home, Bagalkot. The wife of the complainant Geeta was complaining of stomach ache and she was taken to the hospital, the accused examined her and directed to undergo Sonography. It was disclosed that she was pregnant by six months. But she was healthy and perfectly normal. However the accused asked the patient to remain in the hospital in the night for observation. The complainant and his wife remained in the hospital. At about 10.00 p.m. the complainant left one Parvatewwa-PW.4 to assist his wife and he had been to his relatives room. At about 12.30 a.m. it was informed by Parvatewwa that the nurse had given an injection to the patient Geeta and thereafter Geeta was taken to the operation theatre. When they rushed to the hospital, they came to know that Geeta was subjected to operation by the accused without getting any consent either of the patient Geeta or her relatives. After some time the accused came out of the operation theatre and told them to bring blood. Since it was midnight, the complainant who is the husband of the deceased Geeta could not get the blood. Subsequently Geeta was brought outside of the operation theatre and they found that the clothes of Geeta were blood stained and her body was found with bandages. They immediately took the patient to Dr. S.S. Hiremath's clinic at Hubli, by hiring a vehicle and on the way Geeta Patil breathed her last near Nargund or Navalgund. Thereafter they took the dead body immediately to their native place Mudalagi and cremated the dead body. 3. They immediately took the patient to Dr. S.S. Hiremath's clinic at Hubli, by hiring a vehicle and on the way Geeta Patil breathed her last near Nargund or Navalgund. Thereafter they took the dead body immediately to their native place Mudalagi and cremated the dead body. 3. It is alleged that the doctor, who is the accused, when he came out of the operation theatre was trembling and walking by holding his hands to the wall indicating that he was intoxicated and that instead of operating some other patient by name Geeta Terani, the doctor has negligently conducted operation of Geeta Patil and as a result of such rash and negligent act, Geeta Patil succumbed to the injuries sustained during the operation. Hence her husband the complainant filed a complaint before the police. The said complaint was registered as Crime No. 264/1995 of Bagalkot Town Police Station. After investigation the police found that the doctor was negligent and hence charge sheet came to be filed. 4. During the trial the prosecution has examined in all 14 witnesses and got marked Ex.P.1 to P. 15 and produced M.O.1 to M.O.17. The defence of the accused was one of total denial. It is the case of the doctor that he has never conducted operation on Geeta Patil and that a false case has been filed against him. The learned Magistrate after appreciating the evidence on record found that the case of the complainant is not believable and acquitted him, since the prosecution did not prove the case against him beyond reasonable doubt. It is this order of acquittal that has been questioned by the State in this appeal. 5. Heard Sri K.S. Patil, the learned High Court Government Pleader on behalf of the appellant-State. It is submitted by him that the prosecution has produced witnesses namely PW.1 the complainant who is the husband of the deceased and PWs.4, 5 and 6 who are the relatives and villagers of the complainant who have clearly stated before the Court that Geeta Patil was taken to the hospital on 20.11.1995 and that she was operated upon by the accused in his operation theatre, without there being any need for the same, as a result of which Geeta Patil succumbed to the injuries sustained in the operation. 6. 6. He further submits that when the dead body was taken to the house, it was found that scissors was lying on her body and there was profuse bleeding from the bandaged portion of the body of the deceased. It is further submitted by him that the accused was trembling while walking and was holding wall while going out of the operation theatre, which clearly establishes that the accused was in an intoxicated state of mind and he has conducted operation negligently and rashly without specifically informing the patient and therefore he ought to have been convicted of the offences charged against him. He further submits that the Investigating Officer has found that the accused has committed offence. Hence he may be convicted. 7. The learned counsel for the respondent-accused Sri R.D. Desai submits that the trial Court has held that at the very outset the fact that Geeta Patil had admitted to the hospital run by the accused has not been established by the prosecution. There is no document to show that Geeta Patil was admitted in the hospital. He further submits that during investigation no documents are seized by the prosecution to show that the deceased was a patient of that hospital. The prosecution has recovered the list of patients and the patients register and produced in the form of M.Os., wherein the name of Geeta Patil does not find a place. He further submits that if the accused was in a drunken condition and that he had come out in such a situation, nothing prevented PW.1 the complainant from approaching the police immediately even before taking the dead body to his house. He further submits that the dead body has not been subjected to postmortem examination to find out as to what is the reason for death of the deceased. Therefore he submits that the accused could not have been convicted and the learned Magistrate has rightly acquitted the accused of the offences leveled against him. 8. He further submits that the witnesses who have been examined and spoken about the prosecution case are nearest relatives of the deceased and villagers and that no independent witnesses have been examined. Therefore he submits that the accused could not have been convicted and the learned Magistrate has rightly acquitted the accused of the offences leveled against him. 8. He further submits that the witnesses who have been examined and spoken about the prosecution case are nearest relatives of the deceased and villagers and that no independent witnesses have been examined. Further, PWs.9, 10 and 11 are the so called Geeta Terani and her relatives who have stated that Geeta Terani has been in fact operated by the accused on that day and said operation was successful and Geeta Terani has come to the Court saying that she has been operated by the accused. In that view of the matter he submits that the allegations against the accused is false and not supported by any cogent and reasonable evidence and the Magistrate has rightly acquitted the accused of the offence leveled against him. This being an order of acquittal, there is no such ground to reverse the order of acquittal passed by the Magistrate, since the acquittal order is neither perverse nor against the settled principles of law. 9. Though the charge is not properly framed by the learned Magistrate, from the complaint given by the complainant it is revealed that the incident has taken place on 21.11.1995 in the midnight. According to the complainant, he went along with his wife to the hospital run by the accused on 20.11.1995 and his wife was examined by the accused. The accused had directed Sonography to be taken on the body of the deceased and at about 10-30 p.m. when they were in the hospital, she was observed to be fully healthy and thereafter at about 12.30 a.m., the attendant of his wife came running and informed that at about 12.00 midnight the deceased was given an injection by anurse and thereafter the accused informed her that he will conduct operation and took Geeta Patil inside the operation theatre in spite of the resistance from Geeta Patil. When they reached the hospital, Geeta Patil was brought outside the hospital in the condition of being operated and the clothes surrounding her body were blood stained. Thereafter they have taken her to another hospital, but before they reached the said hospital, Geeta Patil succumbed to the injuries and hence they took her dead body to their house and cremated her. 10. Thereafter they have taken her to another hospital, but before they reached the said hospital, Geeta Patil succumbed to the injuries and hence they took her dead body to their house and cremated her. 10. PW.1 Shivanagouda Bhimanagouda Patil has stated the above facts in his evidence before the Court. He has been thoroughly cross-examined by the defence and it is suggested that Geeta Patil has not been operated at all in the operation theatre belonging to the accused. It is elicited that he had approached the Consumer Disputes Redressal Forum for compensation against the accused, but his claim has been rejected. He has also admitted in the cross examination that he had filed a complaint before the Karnataka Medical Council against the accused and that application also came to be dismissed. 11. PW.2 is a witness for inquest proceedings. PW.3 is a pancha for Ex.P.7 wherein the police have drawn the mahazar of the scene of occurrence. PW.4 Parvatewwa is the lady who was present along with the deceased Geeta Patil at the hospital when the deceased was operated. She has stated that the accused had conducted operation on the deceased after the nurse gave an injection at about 10.00 or 11.00 p.m. before operation on the date of the incident. She went and informed PW.1 about this aspect. After some time the accused opened the door of the operation theatre and asked them to bring blood for the patient, but they could not get the blood since it was midnight. Thereafter the deceased was taken to another hospital in a tempo, but Geeta Patil succumbed to the injuries sustained due to operation, on the way to the hospital. In the cross-examination it is suggested that she is related to the deceased. It is also elicited from her that there was no reason why complaint could not be filed immediately. 12. PW.5 Basavaraj is another relative who was also present in the hospital premises on the date of incident. His evidence is similar to that of PWs. 1 and 3. PW.6 had also accompanied the deceased to the hospital along with PW.1. He was also present when the patient was brought out of the operation theatre. He has stated that the accused was in intoxicated condition when Geeta Patil was brought out of the operation theatre. His evidence is similar to that of PWs. 1 and 3. PW.6 had also accompanied the deceased to the hospital along with PW.1. He was also present when the patient was brought out of the operation theatre. He has stated that the accused was in intoxicated condition when Geeta Patil was brought out of the operation theatre. In his cross-examination it is elicited that when the dead body was given a bath, they found a scissors, but the said scissors has not been handed over to the police during the investigation. 13. PW.7 Neelabai Pandre, PW.8 Neelavva Annigeri and PW.9 Geeta Terani have turned hostile to the case of the prosecution. They have not supported the fact that Geeta Patil was operated in the hospital of the accused. PW.10 Arun also has not supported the case of the prosecution. PW.11 has also turned hostile to the case of the prosecution. PW.12 is the Inspector of Police who has conducted part of investigation. PW.13 is the Superintendent of Police of Bagalkot District who has also participated in the investigation. PW.14 is the Deputy Superintendent of Police who has also assisted in the investigation of the case. 14. On careful consideration of the entire materials placed on record, the learned Magistrate has found that the prosecution case is not proved beyond reasonable doubt on the ground that it was not plausible, that the complainant has not given a complaint immediately after they found that the doctor was found in intoxicated condition and his hands were shaking when he came out of the operation theatre on the date of incident. There was sufficient reason for the complainant to give a complaint, since the deceased was not at all sick when she was brought to the hospital and that she was erroneously operated upon by the accused. The learned Magistrate further found that even after coming out of the hospital of the accused nothing prevented the complainant and his family members to inform the police. They have not done so, nor the dead body was taken to any Government Hospital for subjecting the same for postmortem examination to find out whether the accused was guilty of either rashly or negligently conducting the operation on the patient Geeta Patil, as a result of which she died. 15. They have not done so, nor the dead body was taken to any Government Hospital for subjecting the same for postmortem examination to find out whether the accused was guilty of either rashly or negligently conducting the operation on the patient Geeta Patil, as a result of which she died. 15. The learned Magistrate has also further found that there is an inordinate delay in lodging the complaint in that PW.1 after conducting the funeral ceremony again waited for 15 days before filing the complaint and that since he had preferred petitions both before the Consumer Forum and Karnataka Medical Council, to take action against the accused doctor and after being unsuccessful, he has tried to file a complaint and that the delay in this case is fatal to the case of the prosecution. For the above reasons the learned Magistrate has acquitted the accused. 16. On a careful reading of the evidence on record and also the documents and the reasoning given by the learned Magistrate in acquitting the accused, I find that the reasonings assigned by the learned Magistrate are in accordance with law and are based on evidence on record. There is no illegality or perversity in the order of acquittal passed by the learned Magistrate and this being an appeal against the order of acquittal, unless there are strong circumstances for reversing the order of acquittal, viz., unless the judgment is perverse or is not based on the evidence on record or the judgment is against the settled principles of law, an order of acquittal cannot be lightly converted into one of conviction. This being the basic principle of law in dealing with an order of acquittal by an appellate Court, I do not find any such circumstances in this case which warrants reversal of the judgment of acquittal. 17. In that view of the matter, this appeal lacks merits and accordingly this appeal is dismissed.