Bombay High Court
Dr Sou Sultana Md Kamran Khan vs State And Ors on 10 September, 2024
2024:BHC-AUG:21321
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 151 OF 2003
Dr. Sou. Sultana Md. Kamran Khan,
Age : 45 years, Occu. : Medical Practitioner,
R/o. Sambhajinagar, Khadgaon Road,
Latur. ... Appellant.
(Orig. Accused No.2)
Versus
1. The State of Maharashtra
2. Baburao Bhujangrao Kamble,
Age : 45 years, Occu. : Service,
R/o. Khadgaon Road, Latur,
Tq. and Dist. Latur. ... Respondents.
(Orig.Complainant)
...
Mr. P. R. Katneshwarkar, Senior Advocate i/b. Mr. G. R. Syed,
Advocate for Appellant.
Mr. K. K. Naik, APP for Respondent - State.
...
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 3rd SEPTEMBER, 2024
PRONOUNCED ON : 10th SEPTEMBER, 2024
JUDGMENT :
1. The correctness, legality and maintainability of
judgment and order of conviction passed by learned II nd Additional
Sessions Judge, Latur dated 31.01.2003 in Sessions Case No.76 of
2002, is under question in instant appeal.
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FACTS GIVING RISE TO SESSION'S TRIAL ARE AS UNDER
2. Deceased Sumanbai wife of informant PW3 Babu and
mother of PW2 Archana was said to be three months pregnant. On
30.05.1998, Sumanbai visited appellant's hospital i.e. while
informant was on duty and PW2 Archana had been to school. After
returning from school, PW2 Archana also went to the hospital of
appellant and there she met her aunt Mangalbai Kamble and
Swamibai a neighbour. According to prosecution, Sumanbai
underwent medical termination of pregnancy and she was
discharged, but even after returning home, her condition did not
improve and therefore initially taken to Dr. Maya Kulkarni and
from there referred to civil hospital, Latur where while undergoing
treatment, she expired. Therefore, PW3 Babu lodged report at
Exh.26 against present appellant.
3. On the strength of which, PW7 P.S.I. Juktse registered
crime and investigation was carried out by PW8 P.I. Rupnar and
finally appellants were charge-sheeted for commission of offence
under sections 304-A, 314, 201 r/w section 34 of Indian Penal
Code (IPC) and section 5 of the Medical Termination of Pregnancy
Act, 1971 r/w section 34 of IPC.
4. At trial, prosecution in support of its charge and case,
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examined as many as 8 witnesses and sought reliance of FIR and
PM report etc. Defence denied to lead any evidence.
On appreciation of oral and documentary evidence,
learned trial Judge reached to a finding that appellant no.2 was
guilty of commission of offence under sections 304-A and 314 of
IPC.
Feeling aggrieved by the above, instant appeal has been
preferred.
SUM AND SUBSTANCE OF EVIDENCE ON RECORD
5. PW1 Gunderao, pancha to inquest identified
panchanama at Exh.23.
PW2 Archana, daughter of deceased Sumanbai, deposed
that, when she returned from school, her mother was in the
hospital and so she went there. She saw appellant and her husband
wearing hand-gloves, entering the room and after one hour, her
mother was brought out of the room in unconscious condition and
after being brought home, she complained of stomach pain. On
01.06.1998, her mother was taken to Dr. Maya Kulkarni and
thereafter to Government Hospital, Latur, where she was operated,
but she died due to termination of pregnancy.
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PW3 Babu, husband testified that, on 31.05.1998, his
wife complained of stomach pain and informed him that she got
pregnancy terminated. On 02.06.1998, when he returned from
duty, he learnt that his wife was operated at Government Civil
Hospital, Latur, but she expired.
PW4 Mangal, sister-in-law deposed that, pregnancy of
deceased was terminated in the hospital of appellant. After
reaching home, Sumanbai complained of stomach pain and
therefore, again taken to appellant, where she was given injection.
Thereafter, Sumanbai was taken to Government Hospital and was
operated, but she died while undergoing treatment.
PW5 Dr. Shivaji Bhise is the Medical Officer, who
operated Sumanbai on 02.06.1998. He deposed that, patient died
due to perforation peritonitis with septicemic shock.
PW6 Bhanudas, cousin of deceased Sumanbai also
stated that, deceased was taken to civil hospital, there she
underwent surgery, but she succumbed to death on 02.06.1998.
PW7 Ashok and PW8 Shivaji are the Investigating Officers.
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SUBMISSIONS
On behalf of Appellant :-
6. Criticizing the findings and impugned judgment,
learned Senior Counsel submitted that, here, prosecution had
miserably failed to bring home the charges. According to him, none
of the essential ingredients for attracting charge under sections
304-A or 314 of IPC were available in the prosecution evidence, but
still learned trial court held the charges proved without assigning
sound and legally acceptable reasons. He pointed out that, charge
is of causing death by negligence in treatment, however, according
to him, there is no iota of evidence or reliable piece of evidence to
show that present appellant no.2, who is held guilty, to have
provided any sort of treatment to deceased Sumanbai. He pointed
out that, at the first count, there is no evidence on behalf of
prosecution in support of conception of pregnancy of deceased
Sumanbai so as to undergo MTP. He pointed out that, except oral
evidence of daughter of deceased, there is no independent, cogent
or reliable documentary evidence in support of case of prosecution
that deceased Sumanbai was taken to the hospital of appellant for
any treatment. According to him, there is nothing on behalf of
prosecution to establish very pregnancy of Sumanbai and
regarding she visiting appellant for getting abortion done.
According to him, a neighbouring lady namely Swamibai, who
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allegedly took her to the hospital, is not examined by prosecution.
Thus, according to him, at the threshold, there is no foundation to
the accusation about Sumanbai being brought to the appellant for
any sort of treatment.
7. He further submitted that, on the contrary
prosecution's own evidence suggest that Sumanbai was taken to a
private female doctor and from there taken to civil hospital, Latur
and there she was treated as well as operated and at such hospital
Sumanbai breathed her last. Thus, according to him, with such
evidence coming on record from prosecution evidence, impleading
present appellant for any offence is a fallacy on the part of
prosecution.
8. Inviting attention of the court through the testimonies
of PW2 Archana daughter and PW3 Babu informant husband of
deceased, he submitted that, they have mere hearsay information
of deceased being taken to appellant, but no medical papers are
gathered by investigating machinery in support of the prosecution
case that Sumanbai was taken for any procedure to the appellants.
9. Learned Senior Counsel also took this court through
the testimony of PW5 Dr. Shivaji Bhise and would submit that his
evidence suggest that deceased was operated at civil hospital, but
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for what purpose and on what complaint, is not demonstrated by
placing any medical papers on record. Thus, according to him,
except mere words of Medical Officer, there is nothing to show that
pregnancy of Sumanbai was previously aborted by present
appellant. He pointed out that, even cause of death is opined due to
septicemic shock and that too while deceased was admitted and
treated in civil hospital till she breathed her last. He also pointed
out that, surprisingly, Government Medical Authorities have not
issued any medical notes of alleged history at the time of admission
or any clinical notes of post surgery at Government Hospital. He
also questioned the credibility of PW5 Dr. Shivaji Bhise by posing a
question that this medical expert was not only party to the
treatment and operation of Sumanbai, but even he himself
conducted autopsy, issued opinion and was also further party to
the so called experts committee constituted by Civil Surgeon. He
pointed out that, other treating doctors, who examined Sumanbai
and Dr. Warade, who joined this witness in conducting surgery as
well as in providing post operative care and treatment, are not
examined. Therefore, he seriously questions the prosecution
version blaming appellant for causing death due to medical
negligence.
10. Resultantly, in the light of above material, learned
Senior Counsel, criticized the findings as well as judgment to be
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erroneous and in absence of legally acceptable evidence.
Finally in support of relief of allowing appeal, he seeks
reliance on following rulings :-
(i) State of Maharashtra v. Ghanshyam and Ors.,
2022 All.M.R.(Cri.) 718;
(ii) State of Maharashtra v. Baban Lahanu Gangurde and Ors.,
2020 (4) Mh.L.J. (Cri.) 486.
(iii) State of Maharashtra v. Shivaji Shankar Ghodekar and Anr.,
2018 All.M.R. (Cri.) 2784.
(iv) Nanjundappa & Anr. v. State of Karnataka,
2022 AIR (SC) 2374.
On behalf of Prosecution :-
11. In answer to above, learned APP submitted that, there
is overwhelming evidence that deceased Sumanbai was treated and
operated by appellant. That, deceased herself reported her
daughter and her husband regarding termination of pregnancy at
appellant's hospital, but her condition never improved. That, there
was medical negligence on their part, according to learned APP,
appellant no.2 was not qualified to perform any procedure. That,
daughter PW2 Archana had deposed about seeing appellant
entering the room, wearing hand-gloves, which itself is indicative
of the fact that pregnancy of Sumanbai was terminated. That,
thereafter, Sumanbai's condition deteriorated and was required to
be taken at higher center at Latur. That, PW5 Dr.Bhise, a Medical
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Officer, who examined and operated Sumanbai, informed PW3
Babu that there were holes to the intestine. That, there was
evidence of termination of medical pregnancy in the hospital of
appellant. Only because of the same, condition of deceased
deteriorated and she succumbed to the same. Appellant no.2 was
solely proved to be responsible and was therefore, according to
learned APP, rightly convicted by learned trial court and so he
prays to dismiss the appeal for want of merits.
ANALYSIS
12. In nutshell, prosecution version is that, deceased
Sumanbai visited hospital of appellant, situated in front of her
house, for termination of pregnancy. On 30.05.1998, there was
MTP by present appellant. According to prosecution, there was
utter negligence in conducting the procedure, raising health
complications and finally Sumanbai succumbed to the same. Hence,
the charges.
13. Sifted the evidence meticulously. It is noticed that at
the outset, there is no full-proof evidence in the form of any test
reports either pathological or radiological suggesting Sumanbai to
be pregnant. Daughter and husband of deceased Sumanbai i.e. PW2
Archana and PW3 Babu, both claimed to have learnt from deceased
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that, she had been to the hospital and got her pregnancy
terminated. The neighbour Swamibai, who allegedly took her to the
hospital, is not examined for the best reasons known to the
prosecution. No medical papers from the so called hospital of
appellant are seized by investigating machinery to establish visit
of Sumanbai to the appellant's hospital. Consequently, there is
nothing to demonstrate that Sumanbai visited appellant's hospital
and underwent any procedure on 30.05.1998.
14. It is further emerging from the testimony of PW2
Archana daughter that after returning from school, when she
visited the hospital, she had merely seen both accused entering a
room, wearing hand-gloves and her mother being brought out of
the room after one and half hour, and thereafter, even discharged
and brought home. According to daughter, her mother complained
of pain in stomach. PW3 Babu informant husband also claims to
have learnt about termination of pregnancy and merely speaks of
asking his wife to take medicines. He left the house for work
purpose on 01.06.1998 and returned on 02.06.1998 and on such
day, he learnt that his wife was referred to Government Hospital,
Latur and so he went there. There he claims that, he learnt from
Medical Officer that his wife was operated. Even, PW5 Dr. Bhise
Medical Officer, who conducted operation, has deposed that
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Sumanbai was admitted and operated in Government Civil Hospital
on 02.06.1998. Therefore, what is emanating is that there is
alleged visit of Sumanbai to the hospital of appellant on
30.05.1998. Thereafter, operative procedure was done at
Government civil hospital, Latur on 02.06.1998 i.e. after three to
four days. Surprisingly, as pointed out by learned Senior Counsel
neither case papers of civil hospital at the time of admission
carrying any previous history nor the medical papers regarding
treatment and surgery conducted at civil hospital, are finding place
in the evidence of prosecution. Resultantly, there is force in the
submission of learned Senior Counsel that there is no iota of
evidence about any medical procedure done by appellant's hospital
and even no case papers of even Government Hospital, Latur are
on record to form any opinion or to fix any responsibility.
15. Here, crucial evidence is that of PW5 Dr. Bhise, who is
examined at Exh.33. His testimony is that, Sumanbai was admitted
in civil hospital, Latur on 01.06.1998 at 7:30 p.m. with history of
MTP two days back at private hospital, but as stated above, noting
to that extent in spite of it being Government Civil Hospital does
not seem to have been drawn so as to accept above version of this
Medical Officer. Further, according to him, there was pain in
abdomen and complaint of not passing motion since two days, but
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there is no supporting medical papers or noting to that extent also.
According to this witness, patient was examined by Dr. Dhele and
he gave her treatment, but neither Dr. Dhele is examined nor
papers of treatment allegedly given by him, are gathered by
investigating machinery. Though this witness claims that
ultrasound examination was done by one Dr. Jadhav, neither said
doctor Jadhav nor ultrasound reports and x-ray films are gathered
and placed on record, which could have thrown light on the
internal medical condition of Sumanbai at the time of her
admission in civil hospital i.e. before she was operated at civil
hospital on 02.06.1998. It is common knowledge that, prior to
planned surgery, certain tests are required to be conducted to
ascertain fitness of the patient to undergo surgery, but surprisingly
papers or reports to that extent, are also not handed by civil
hospital or by Investigating Officer. Such seems to be the sorry
state of affairs at the District Civil Hospital. It is pertinent to note
that, in the evidence of PW5 Dr. Bhise, more particularly in
paragraph no.2 testified that, during initial examination, general
condition of patient was moderate, middly febrile, pulse was 100
and respiratory and cardiovascular systems were normal. His
such testimony itself clearly indicates that, Sumanbai was under
care and treatment of civil hospital, Latur, there were no serious
complaint rather condition of Sumanbai was normal and moderate.
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16. PW5 Dr. Bhise further deposed that, on examination of
genitals, uterus was noticed to be bulky and therefore, with this
finding the diagnosis of MTP with pelvic peritonitis was noted and
necessary investigations were carried out, like ultrasonography or
x-ray abdomen. But, even reports of such tests are not placed on
record in support of such findings. Therefore, except oral evidence
of PW5 Dr. Bhise, there is no supportive evidence. It is further
surprising that Sumanbai was shown to be subjected to
examination by even senior gynecologist, Civil Surgeon and R.M.O.
and same diagnosis was claimed to be confirmed, but none of them
are examined to corroborate testimony of PW5 Dr. Bhise.
Consequently, here, there is no independent corroboration to the
testimony of PW5 Dr. Bhise, who admittedly and apparently not
only conducting surgery, but also proceeded to conduct post
mortem and even acted as an expert in a committee constituted to
answer the police queries. It is clearly emerging that, Sumanbai
was operated in civil hospital, Latur on 02.06.1998 by PW5 Dr.
Bhise and one Dr. Warad, who is also not examined and it is on that
date in the night Sumanbai has succumbed.
17. It is also pertinent to note that, if at all deceased
Sumanbai underwent any MTP as is claimed by the prosecution,
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she has survived from 30.05.1998 till being treated and further
operated at civil hospital.
18. Therefore, under such circumstances, present
appellant cannot be solely held responsible for medical negligence,
more particularly, when there is no foundation or supportive
evidence about any procedure being conducted at the hospital of
appellant.
19. Here, charge is for commission of offence under section
304-A of IPC, which is inserted by way of amendment to IPC in
1870 and the same reads as under :-
"304-A. Causing death by negligence -
Whoever causes the death of any person by doing any rash or
negligent act not amounting to culpable homicide, shall be
punished with imprisonment of either description for a term
which may extend to two years, or with fine, or with both."
20. The essential ingredients for attracting section 304-A
of IPC could be summarized as under :-
"Firstly, death of individual,
Secondly, death as a result of rash and negligent act."
21. Law is fairly settled that, in case of medical negligence,
to attract section 304-A of IPC, it has to be established that there is
gross negligence and such negligence is the probable consequence
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resulting death, thereby inviting criminality. Error in judgment of
doctor or minor negligence is not sufficient to attract criminality.
There are catena of judgments on the point of medical negligence in
the cases like Bolam v. Friern Hospital Management Committee ;
MANU/QB/0487/1957; Dr. Suresh Gupta v. Govt. Of N.C.T. Of Delhi
& Anr. (2004) 6 SCC 422; Jacob Mathew v. State of Punjab,
(2005) 6 SCC 1.
22. Here, at the cost of repetition, it is noticed that, there is
no iota of evidence to show that, firstly, Sumanbai was at the outset
pregnant; secondly, she had visited hospital of appellant; thirdly,
she had undergone any medical procedure of termination of her
pregnancy and any act on her part which consequently had sole
nexus to death due to septicemic shock. Therefore, here, evidence
of prosecution is apparently weak or falling short on the count of
essential ingredients for attracting either the charge of 304-A or
314 of IPC.
23. Perused the impugned judgment under challenge.
Learned trial Judge though tried husband and wife, on same set of
evidence seems to have acquitted husband, but held wife guilty of
above charge without assigning proper or sound reasons for
holding her alone guilty, even when there was no reliable or legally
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acceptable evidence that she was rash or medically negligent and
solely responsible for death of Sumanbai. Therefore, it is a fit case
for interference at the hands of this court. Resultantly, appellant
succeeds and so I proceed to pass the following order :-
ORDER
I) Criminal Appeal stands allowed.
II) The conviction awarded to appellant - Dr. Sou. Sultana
Md. Kamran Khan in Sessions Case No.76 of 2002 by
learned IInd Additional Sessions Judge, on 31.01.2003 for
the offence punishable under section 5 of the Medical
Termination of Pregnancy Act, 1971 and sections 304-A
and 314 of Indian Penal Code, stands quashed and set
aside.
III) The appellant stands acquitted of the offence punishable
under section 5 of the Medical Termination of Pregnancy
Act, 1971 and sections 304-A and 314 of Indian Penal
Code.
IV) The bail bonds of the appellant stands cancelled.
V) The fine amount deposited, if any, be refunded to the
appellants after the statutory period.
(ABHAY S. WAGHWASE, J.)
Tandale
