IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA [CASE NUMBER] Reserved on: 23.04.2019 Decided on: 21.05.2019 [ENTITY] Appellant .
Versus [ENTITY] Respondent Coram The Hon'ble Mr. Justice [ENTITY], Judge.
Whether approved for reporting? Yes.
For the appellant : Mr. [ENTITY], Mr. [ENTITY] and Mr. [ENTITY], Additional Advocates General with Mr. [ENTITY], Deputy Advocate General.
For the respondent :
r Mr. [ENTITY], Advocate.
[ENTITY], Judge The present appeal, under [SECTION] of the [ACT], has been maintained by the appellant-[ENTITY], assailing the judgment of acquittal, dated 12.02.2008, passed by learned Chief Judicial Magistrate, Kullu, District Kullu, H.P, in criminal case No. 223-1/2003/28-II/2005, under Section304-A of the [ACT] (for short "[ACT]").
2. Briefly the facts giving rise to the present appeal as per the prosecution story are that on 22.04.2002, [ENTITY] (since deceased) sister of complainant, [ENTITY] visited the hospital of respondent-accused for kidney stone Whether reporters of Local Papers may be allowed to see the judgment?
problem. The respondent gave her medicines, conducted her X-ray and advised her to come again for medical check up.
Consequently, on 29.04.2002, the deceased again visited the .
hospital of the accused, where her X-ray was conducted and it was disclosed to her that she is having stone in her kidney and to remove the stone, an operation is required to be conducted. On 08.07.2002, the deceased accompanied by [ENTITY] went to the hospital of the accused and she was admitted for operation. On 09.07.2002, she was taken to operation theatre, however, after sometime, the accused told the complainant that patient was running 103 degree fever. It was also told by the accused that there is a hole in intestine of the deceased. At that time, no anesthetist was available. The condition of the deceased deteriorated and ultimately at 10:00 p.m. she died. It has been alleged by the complainant that the accused had operated her sister for kidney stone, but it was revealed in the death certificate that the reason of the death was perforation and rapture of intestine. Consequently, the incident was reported to the police and FIR was registered against the accused on the allegations that the deceased died on account of negligence on his part. During the course of investigation, police took into possession the relevant records from the hospital of the accused, as well as medical treatment records of the deceased. The spot map was also prepared and after completion of investigation, challan was presented in the Court .
3. Prosecution, in order to prove its case, examined as many as ten witnesses. Statement of the accused was recorded under [SECTION] [ACT], wherein he denied the prosecution case and claimed innocence. Accused did not lead any defence evidence. The learned trial Court, vide impugned judgment dated 12.02.2008, acquitted the accused for the commission of offence, punishable under [SECTION] of [ACT], hence the present appeal.
4. Learned Additional Advocate General, has argued that the judgment of acquittal, passed by the learned trial Court is without appreciating the evidence to its true perspective and after re-appreciating the evidence correctly, the accused be convicted, as the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt.
On the other hand, learned counsel appearing on behalf of the accused/respondent has argued that the prosecution has failed to prove the guilt of the accused beyond the shadow of reasonable doubt and, therefore, the well reasoned judgment of acquittal, passed by the learned trial Court needs no interference.
5. To appreciate the arguments of learned counsel for the parties, this Court has gone through the record in detail and minutely scrutinized the statements of the .
witnesses.
6. PW-1, [ENTITY] and PW-2, [ENTITY], while appearing in the witness box have deposed that the deceased went to the hospital of the accused on 22.04.2002 and again she was told to come to the hospital. Consequently, on 29.04.2002, the deceased again visited the hospital for medical check up and she was told to conduct operation for kidney stone problem. On 08.07.2002, the deceased was admitted in the hospital for operation and on 09.07.2002, when she was inside the operation theatre, the accused told that the deceased was running 103 degree fever and at about 5:00 p.m., the accused told that the patient was having a hole in her intestine. As per PW-1 and PW-2, the accused preferred to conduct the operation without the help of any anesthetist expert. At about 9:00 p.m., the deceased expired. As per the statement of PW-1, the death of the deceased took place due to negligence on the part of the accused. PW-1, in his cross-
examination, admitted that the accused had advised him to conduct the operation of the deceased from some other hospital, however, he insisted that he wanted to keep the patient in S.R. Hospital.
7. PW-3, [ENTITY], Laboratory Technician in the hospital of the accused has deposed that on 09.07.2002, .
the operation of the deceased was conducted by the accused and at that time, Dr. [ENTITY], MBBS, Dr. [ENTITY], BMS and Farmacist [ENTITY] were present there. She further deposed that accused himself had administered anesthesia to the patient.
8. PW-4, Dr. [ENTITY], has deposed that during the month of July, 2002, PW-1 came to him with medical reports issued by S.R. Hospital of the accused. He further deposed that from the perusal of the documents issued by the hospital, it was clear that the patient was being treated for kidney stone. However, the death certificate was revealing that the cause of death was due to intestine. As per this witness, if any person is having perforation in the intestine, it would not be possible for him/her to stand and walk. He deposed that as per PW-1 on the relevant day, he and the deceased came on foot for about 5/6 kms. But, the deceased could not have walked 5/6 kms with perforation in intestine.
9. PW-5, [ENTITY], Retd. SHO, Police Station Kullu, has prepared the challan. PW-6, HC, [ENTITY], has deposed that during investigation of the case, he recorded the statements of the witnesses and took into possession certain documents from the hospital of the accused. PW-7, .
ASI [ENTITY], has deposed that he also carried out the investigation, during which, he took into possession treatment chart, as well as death certificate of the deceased, vide recovery memo, Ext. PW-7/A. PW-8, [ENTITY], uncle of the deceased has also deposed the facts, as stated by the complainant [ENTITY]. PW-9, ASI [ENTITY] has proved FIR, Ext. PW-1/A. PW-10, [ENTITY], another Investigating Officer of the case, has deposed that after visiting the spot, he prepared spot map, Ext. PW-10/A. He also took into possession prescription slip and X-ray films, vide recovery memo, Ext. PW-
1/B. The relevant registers from the hospital of the accused were also taken into possession vide recovery memo, Ext. PW-
10/B. He also took into possession other relevant record of treatment of the deceased, vide recovery memo, Ext. PW-
10/C.
10. It is admitted case of the prosecution that on 22.04.2002, the deceased visited the hospital of the accused for kidney stone problem and thereafter on 29.04.2002, she was advised for operation in order to remove kidney stone, on which date, her X-ray was conducted and medicines were given to her. After 29.04.2002, the deceased did not visit the accused till 08.07.2002 and this fact proves that during the aforesaid period, the deceased was having no pain in the .
abdomen, or any other problem. Meaning thereby, that the medicines prescribed by the accused on 29.04.2002 had positive result.
11. Now coming to the medical evidence and Ext. PB, Ext. PW-1/D and Exts. PN & PM in this regard are very important evidence which have come on record. Ext. PM reveals that on 08.07.2002 at about 4:00 p.m., the deceased was medically examined by the accused in his hospital for severe abdomen pain. The accused had also shown the position of pain and tenderness by diagram, which reveals that on 08.07.2002, pain and tenderness was detected on the left side, whereas on 22.04.2002, pain was detected on the right side of the abdomen. Which proves that the deceased had developed new tenderness and pain on the left side on 08.07.2002 and her earlier problem, i.e. the pain on the right side was fully cured. Whereas, Ext. PB shows that all the necessary tests of the deceased were carried out by the accused. The X-ray and ultrasound reports of the deceased show that air and fluid level was causing obstruction in the intestine and to remove the said obstruction from the intestine, the accused preferred the surgery of the deceased for her improvement. Ext. PM further reveals that the accused had taken precaution before conducting surgery, as the .
deceased was put to nil oral diet. On 08.07.2002, the deceased was medically checked at 6:00 p.m. and 8:00 p.m. and on both occasions patient was having no pain. Meaning thereby that medical treatment started at 4:00 p.m. had given positive results. On 09.07.2002 at 12 O'Clock (midnight), the deceased was again examined and no new complaint was noticed. However, tenderness was noticed on the left side. In the morning of 09.07.2002 at about 6:00 a.m. and 10:00 a.m. the deceased was again medically checked up. Thereafter, on the same day at 1:00 a.m., the condition of the patient deteriorated and 103 degree fever was noticed. The blood pressure of the deceased had also dipped and it was 90/60 at that time. Accordingly, the accused advised for immediate surgery. Ext. PW-1/D further reveals that before surgery, the accused had advised to conduct operation from some other hospital, however, complainant [ENTITY] and [ENTITY] insisted that they wanted to keep the patient in S.R. Hospital of the accused and this fact has been admitted by the complainant in his cross-examination.
12. The another important document, i.e. Ext. PN, is treatment chart of the deceased. As per the allegation of the prosecution, the accused conducted the operation of the .
deceased without the help of anesthetist expert. However, as per Ext. PN, the operation of the deceased was conducted by the accused on 09.07.2002 at about 3:30 p.m. with the monitoring anesthesia by Dr. [ENTITY], Mr. [ENTITY] and [ENTITY], Assistants. PW-3, Smt. [ENTITY], has specifically deposed in her evidence that at the time of operation, Doctor [ENTITY] was present, whereas the accused had administered anesthesia and only in one part, the body of the deceased was under the influence of anesthesia. In these circumstances, it is clear that the accused is a qualified doctor, as well as surgeon and at the time of operation, one another MBBS, Dr. [ENTITY] was assisting him.
13. After going through the medical evidence in detail, this Court finds that the accused gave fair treatment to the deceased and made every possible effort for her betterment.
So, the learned trial Court has rightly come to the conclusion that death of the deceased was sheer an accident, wherein the accused was having no mens rea in any manner whatsoever. Meaning thereby that the accused was not rash and negligent in causing death of the deceased while conducting her operation. In these circumstance, after taking into consideration the medical evidence, which has come on record and testimonies of the witnesses, even after re-
appreciating the evidence, this Court finds that the prosecution has failed to prove the guilt of the accused beyond the shadow of reasonable doubt and the well reasoned judgment of acquittal, passed by the learned trial Court, needs no interference.
14. It has been held in K. Prakashan vs. P.K. Surenderan (2008) 1 SCC 258, that when two views are possible, appellate Court should not reverse the judgment of acquittal merely because the other view was possible. When judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/misappreciation of evidence on record, reversal thereof by High Court was not justified.
15. The Hon'ble Supreme Court in [PRECEDENT], has held that where two views are reasonably possible from the very same evidence, prosecution cannot be said to have proved its case beyond reasonable doubt.
16. In [PRECEDENT], the Hon'ble Supreme Court has culled out the following principles qua powers of the appellate Courts while dealing with an appeal against an order of acquittal :
"42. From the above decisions, in our considered view, the following general .
principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The [ACT] puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law.
Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
17. In view of the aforesaid decisions of the Hon'ble Supreme Court and the discussion made hereinabove, I find .
no merit in this appeal and the same deserves dismissal and is accordingly dismissed. Pending application(s), if any, shall also stands disposed of.
([ENTITY]) Judge May 21, 2019 (raman)