Dr. Kiran Kaushal vs The State Of Jharkhand
2022 Latest Caselaw 1485 Jhar

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     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  Cr.M.P. No. 1547 of 2019

     Dr. Kiran Kaushal, aged about 55 years wife of Koshlendra Kumar,
     Resident of village Kalyandih, P.O. Pachamba, P.S. and District-Giridih
                                                  ....    ...Petitioner
                                 Versus

         1. The State of Jharkhand

         2. Anita Devi, wife of Sri Sunil Kumar Sharma, resident of village
            Sonbad, Ghordamba, P.O. and P.S. Rajdhanwar, District-Giridih

                                      ..... ...Opp. Parties
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner : Mr. Nagmani Tiwary, Advocate Mr. Amit Kumar Verma, Advocate For the State : Mr. Jitendra Pandey, A.P.P.

For the O.P. No. 2 : Mr. Vishal Kumar, Advocate ..........

10/ Dated:-12.04.2022

1. Heard Mr. Nagmani Tiwary, learned counsel for the

petitioner, Mr. Jitendra Pandey, learned counsel for the State and

Mr. Vishal Kumar, learned counsel for the State.

2. This petition has been filed for quashing entire

criminal proceedings pertaining to Protest-cum-Complaint Petition

CC No. 742 of 2016 including the order taking cognizance dated

30.07.2018 whereby cognizance has been taken under sections 307

and 420 I.P.C. against the petitioner, pending in the Court of

learned C.J.M., Giridih.

3. The O.P. No. 2 has filed complaint case alleging therein

that she was suffering from pain in abdomen and upon instruction

of the doctor Ultrasound was done on 20.03.2010 at Lalpur

Ultrasound Centre, Ranchi wherein both kidneys were normal. It is

alleged that after two months again pain started wherein she met

the petitioner and was advised operation which was done.

However, pain continued and the complainant was financially

exploited from 01.06.2010 to 09.05.2011 on account of treatment.

It is further alleged that the pain became more and she started

problem in urinating and on 09.10.2013 when ultrasound was done

at Nav Ultrasound Krishna Nagar, Giridih it was revealed that the

complainant did not have left kidney. Repeat ultrasound was

occasioned on 21.03.2013 and 24.10.2013 at Ranchi and Dhanbad

which testified the said fact. It is alleged that prior to operation,

both kidneys were normal and after operation left kidney was

missing which indicates that the petitioner has taken out the left

kidney. It was alleged that no further operation was occasioned by

the complainant elsewhere. It is alleged that subsequently

complaint case was lodged which was sent for lodging of F.I.R.

pursuant thereto Nagar P.S. Case No. 55/2015 was lodged. It is

alleged that only to help the petitioner, wrong report was submitted.

4. Mr. Nagmani Tiwari, learned counsel for the petitioner

submits that initially complaint was filed by the O.P. No. 2 which

was referred to under section 156(3) to the concerned police station

for institution of F.I.R. and pursuant thereto police submitted final

form in which petitioner was not sent up for trial. He further

submits that O.P. No. 2 was called by the learned court by way of

issuing notice pursuant thereto O.P. No. 2 filed protest-cum-

complaint petition before the concerned court and produced

enquiry witnesses including herself and on the basis of same

learned court took cognizance under sections 307 and 420 of the

Indian Penal Code. He further submits that the operation of

hysterectomy of the O.P. No. 2 was conducted in the year, 2010 by

the petitioner and the complaint was filed in the year 2014 about

delay of three years. He further submits that the complainant has

approached the Deputy Commissioner, Giridih pursuant to that

Deputy Commissioner has constituted 3-Men Expert Committee to

examine the facts in which Dr. (Mrs.) Rekha Kumari, M.O. SH,

Giridih, Dr. Nitya Nand Mandal, MO, SH, Giridih and Dr. (Mrs.)

Sarjana Sharma, LMO, SH, Giridih have been formed in committee.

He further submits that in the said committee report they have

opined that one Kidney was not there from the time of birth and

case was found renal agenesis. He further submits that pursuant to

letter dated 28.08.2014 issued by the Director-in-Chief, Health

Services, Government of Jharkhand 3-Men Committee was

constituted by RIMS, Ranchi wherein Head of Department of

Surgery, RIMS, Head of Department, Radiology and Director,

Medicine Education & Health Services, Government of Jharkhand

have been formed in the committee. The said committee has also

opined that Kidney in question was absent since birth. He further

submits that the said doctor Enquiry Witness No. 3 was called by

the Committee but that the said doctor has not appeared in the said

committee. He further submits that no offence under sections 307

and 420 I.P.C. so far petitioner is concerned, is made out. He relied

on judgment in the case of "Jacob Mathew Vs. State of

Punjab" reported in (2005) 6 SCC 1.

5. Per contra, Mr. Vishal Kumar, learned counsel for the

O.P. No. 2 submits that expert opinion is required to be considered

in the light of section 45 of the Indian Evidence Act. Referring to

the statement of the enquiry witnesses specially Enquiry Witness

No. 3 which is annexed with the petition, he submits that this

witness has stated that before operation both kidney of the O.P.

No. 2 was intact which has been disclosed in the Ultrasound

report. He further refers to Section 145 of the Indian Evidence Act

and submits that credibility of witness can be allowed only in

manner prescribed under section 145 the said Act. He further

submits that so far as expert opinion is concerned, it is required to

be considered in the light of Section 293 Cr.P.C. He submits that at

this stage the Court may not interfere with the petition under

section 482 Cr.P.C. as only cognizance has been taken and the entire

fact is intact. He relied on judgment in the case of "Dayal Singh &

Others Vs. State of Uttranchal" reported in (2012) 8 SCC 263

wherein para 37 the Hon'ble Supreme Court has held as under:-

"37. Profitably, reference to the value of an expert in the eye of the law

can be assimilated as follows:

"The essential principle governing expert evidence is that the expert is not only to provide reasons to support his opinion but the result should be directly demonstrable. The court is not to surrender its own judgment to that of the expert or delegate its authority to a third party, but should assess his evidence like any other evidence.

If the report of an expert is slipshod, inadequate or cryptic and the information of similarities or dissimilarities is not available in his report and his evidence in the case, then his opinion is of no use. It is required of an expert whether a government expert or private, if he expects, his opinion to be accepted to put before the court the material which induces him to come to his conclusion so that the court though not an expert, may form its own judgment on that material. If the expert in his evidence as a witness does not place the whole lot of similarities or dissimilarities, etc., which influence his mind to lead him to a particular conclusion which he states in the court then he fails in his duty to take the court into confidence. The court is not to believe the ipse dixit of an expert.

Indeed the value of the expert evidence consists mainly on the ability of the witness by reason of his special training and experience to point out the court such important facts as it otherwise might fail to observe and in so doing the court is enabled to exercise its own view or judgment respecting the cogency of reasons and the consequent value of the conclusions formed thereon. The opinion is required to be presented in a convenient manner and the reasons for a conclusion based on certain visible evidence, properly placed before the Court. In other words the value of expert evidence depends largely on the cogency of reasons on which it is based." [See Forensic Science in Criminal Investigation & Trial (4th Edn.), by B.R. Sharma.]"

6. By way of relying on the aforesaid judgment, learned

counsel for the O.P. No. 2 submits that value of expert evidence

consists mainly on the ability of the witness as it has been held by

the Hon'ble Supreme Court in the case of " Dayal Singh" (supra)

He submits that both the reports are subject matter of the trial and

at this stage, this Court may not interfere with this petition.

7. Learned counsel for the O.P. No. 2 further relied on

judgment in the case of " The Forest Range Officer and Others

Vs. P. Mohammaed Ali & Others" reported in AIR 1994 SC

120 and submits that expert opinion is only opinion that evidence

does not interpret. Relying on this judgement, he submits that at

this stage this Court may not interfere with this petition.

8. In view of aforesaid facts and considering the

submission of the learned counsel for the parties, the Court has

gone through the materials on record. It is an admitted fact that

the complaint was filed by the O.P. No. 2 and pursuant to reference

under section 156(3) Cr.P.C. the matter was investigated by the

police and final form has been submitted whereby petitioner has

not been sent up for trial who is a doctor who conducted

hysterectomy upon the O.P. No. 2. Pursuant to final form, learned

court has called the O.P. No. 2 by way of issuing notice upon her.

The O.P. No. 2 appeared and filed protest-cum-complaint petition

and examined herself and other witnesses. Pursuant thereto

considering the enquiry witnesses, particularly Enquiry Witness No.

3 cognizance has been taken against the petitioner under section

307 and 420 I.P.C. who has conducted hysterectomy. On perusal of

cognizance order dated 30.07.2018, it transpires that the learned

court has given much emphasis upon Enquiry Witness Nos. 3 and 4

who are doctor who conducted Ultrasound of the O.P. No. 2. When

two reports of Giridih Hospital and RIMS may be part of the final

form that was required to be considered by the learned court before

taking cognizance as two Committees have come to the conclusion.

Both Committee have not found scar mark in the kidney region and

found only one transverse scar mark in supra pubic region of lower

abdomen and case of removal of kidney was not found. The learned

court took cognizance under sections 307 and 420 of the Indian

Penal Code. How the ingredients of these two sections are made

out, has not been disclosed in the cognizance order.

9. The judgement in the case of "Jacob Mathew"

(supra) relied by the learned counsel for the petitioner is with

regard to negligence of operation in which it has been held that

the Supreme Court has made an extensive discussion of the various

issues that may arise in cases of civil medical negligence and all

the conclusions in respect thereof would be applicable to cases of

criminal medical negligence and all rulings would have to be

considered in the context of the higher level of negligence

necessary to constitute criminal negligence.

10. In the case of "Dayal Singh" (supra) relied by the

learned counsel for the O.P. No. 2 the Hon'ble Supreme Court has

also held that if the report of an expert is slipshod, inadequate or

cryptic and the information of similarities or dissimilarities is not

available in his report and his evidence in this case, thus his opinion

is of no use. These judgements are required to be considered in the

light of this observation also. The judgment in the case of "Forest

Range Officer (supra) relied by the learned counsel for the O.P.

No. 2 wherein it has been held that expert opinion is only opinion

that evidence does not interpret, which is subject matter of the fact.

11. In the case in hand doctor is being prosecuted when

two reports which is part of final form pursuant to which final form

has been submitted it was incumbent upon the learned court to

consider the two expert committee reports. Section 293 Cr.P.C.

relied by the learned counsel for the O.P. No. 2 also provides the

method how expert can be examined. Since two reports of the

committee who are expert in their field and considered that P.W.3

has not reported before the RIMS Committee though she was called

by that committee, this matter is required to be reconsidered by the

learned court below. Accordingly, cognizance order 30.07.2018 in

connection with CC No. 742 of 2016 taken against the petitioner

under sections 307 and 420 I.P.C., pending in the Court of learned

C.J.M., Giridih is hereby quashed.

12. The matter is remitted back to the court concerned to

pass afresh order in the light of discussions made here-in-above and

in accordance with law.

13. This petition is disposed of. Pending I.A., if any, stands

disposed of.

(Sanjay Kumar Dwivedi, J.) Satyarthi/-