IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 1ST JANUARY 2008 / 11TH POUSHA 1929 CRL.A.No. 1331 of 2003 AGAINST THE JUDGEMENT/ORDER IN CRLP.191/2003 Dated 23/07/2003 CC.33/1998 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR .................... APPELLANT: COMPLAINANT P.V.SUSHEELA, W/O. RATNAKARAN, PERUMADATHIL HOUSE, KOYYED P.O., KANNUR. BY ADV. SRI.P.M.PAREETH RESPONDENTS: STATE & ACCUSED 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. DR.ABDULLA, S/O. ABDURAHAIMAN A.K.G.MEMORIAL HOSPITAL, TALAP, KANNUR. 3. DR.MINI P. NAIR, D/O. GOPINATHAN, A.K.G.MEMORIAL HOSPITAL, TALAP KANNUR. BY ADV. SRI.V.RAMKUMAR NAMBIAR PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.1331 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of January 2008 JUDGMENT Appellant is the complainant in a private complaint. She had sought to prosecute respondents 2 and 3/accused before the Judicial Magistrate of First Class-I, Kannur for offences punishable under Sections 338 and 418 read with Section 34 IPC. The learned Magistrate, after an elaborate consideration of the oral and documentary evidence on record, found that the accused were not guilty of the charges levelled against them and accordingly they were acquitted under Section 248(1) of the Code of Criminal Procedure. Appellant has preferred this appeal against the above judgment of acquittal after obtaining special leave. 2. The case of the complainant may be briefly noticed. 3. The complainant had got herself admitted in A.K.G. Hospital at Kannur on April 14, 1996 with a complaint of severe vomitting for two days. On 20th of April, the accused who were working in the said hospital as Surgeon and Gynaecologist respectively, had conducted an emergency laparotomy on her, Crl.A.No.1331 OF 2003 :: 2 :: since it was diagnosed that she had a ruptured tubal (right) pregnancy. The complainant alleged that in the course of the surgery, the accused had removed her right ovary without her consent or knowledge. Accused had performed the surgery in a totally rash and negligent manner. She further alleged that the accused had intentionally suppressed the fact that her right ovary had been removed. Thus, she alleged in the complaint that the accused were guilty of the offences punishable under Sections 338 and 418 read with Section 34 I.P.C. 4. PWs 1 to 6 were examined on the side of the complainant and Exts.P1 to P7 were also marked on her side. DW1 was examined and Exts.D1 and D2 were marked on the side of the defence. The learned Magistrate found that the oral and documentary evidence on record did not in any way establish the case of the complainant that the accused had performed the surgery in a rash and negligent manner or without due care and caution. It was further found by the learned Magistrate that the accused had, in Exts.P6 and P7, clearly stated that right ovary of the complainant had been removed. Thus, the learned Crl.A.No.1331 OF 2003 :: 3 :: Magistrate repelled the case of the complainant and held that she had totally failed in establishing the charge levelled against the accused. 5. Learned counsel for the complainant assails the judgment of acquittal primarily on two grounds. It is contended by him that the learned Magistrate has totally misread the oral and documentary evidence adduced by the complainant. Learned counsel invites my attention to Exts.P6 and P7, discharge summary and surgery notes/case sheet respectively. It is contended by the learned counsel that the case advanced by the defence during the course of trial that right ovary of the complainant had to be removed because of excessive bleeding as a result of rupture, was clearly an afterthought. If in fact there was bleeding as a result of the alleged rupture of ovary, it would have found a place in Ext.P7 surgery notes. It is further contended by the learned counsel that the accused had not mentioned anything about the removal of ovary in Ext.P6 discharge summary. 6. The other contention raised by the learned counsel is Crl.A.No.1331 OF 2003 :: 4 :: that the learned Magistrate had jumped to unwarranted conclusions relying on conjectures and surmises rather than appreciating the oral and documentary evidence on record in their proper perspective. In the Ultra Sound Scan conducted on the complainant on April 16, 1996, it had been noticed that both ovaries of the complainant were normal. In Ext.P1 report it had been stated so. The complainant had undergone another Ultra Sound Scan on November 29, 1996. In the said scan report (Ext.P2), PW1, the Radiologist had noted that her right ovary was not seen. The complainant while she was examined as PW2 had asserted that she was unaware of the removal of her right ovary at the time of her discharge from the hospital. She had undergone the Ultra Sound Scan on November 29, 1996 since pain had persisted even after surgery. It was after seeing Ext.P2 report she had realised that the accused had removed her right ovary. 7. Learned counsel for the complainant has placed heavy reliance on the evidence of PW6 who was examined as an expert, on the side of the complainant. PW6, the Head of Department of Crl.A.No.1331 OF 2003 :: 5 :: Gynaecology in the Medical College Hospital, Calicut, had noted that the accused had not stated the reason for removal of right ovary in Ext.P7 surgery notes. But PW6 had deposed that removal of ovary may be warranted or necessitated, if bleeding occurs because of the release of adhesions. She stated that it was entirely at the discretion of the Surgeon, and that too depending on the condition of the patient. If the life of the patient was in danger because of bleeding, ovary might have to be removed. Referring to the case in question, PW6 stated that the complainant had a previous history of ectopic pregnancy for which she had undergone another laparotomy and appendisectomy earlier. 8. In this context, it may be noticed that the specific case of the defence was that emergency laparotomy was performed after obtaining Ext.D1, Ultra Sound Scan report on the day of the surgery. The report revealed that the right ovary was moderately large. PW1, the Radiologist, had noted in Ext.D1 that “there was a space occupying lesion with a measurement of 5 x 4 cms”. More importantly, it was also noticed by PW1 that this lesion was Crl.A.No.1331 OF 2003 :: 6 :: connected with ovary. He had further stated that the ectopic pregnancy (tubal pregnancy) in the Fallopian Tube was touching the right ovary. In Ext.P7 surgery notes/case sheet, the accused who had noted bleeding in the peritoneum (haemoperitoneum). It was also noticed that right side of ampullary portion was ruptured. It was therefore that right side Salpingectomy (Salpingo - Oophorectomy) was done. 9. The contention of the complainant is that the accused had conducted Oophorectomy (surgical removal of one or both ovaries) without her consent. The right ovary had to be removed because of the rashness and negligence shown by the accused in the course of the surgery. What was warranted was only a Salpingectomy (surgical removal of one or both fallopian tubes), it is contended on behalf of the complainant. 10. Ext.P7 case sheet contains a Histopathological report issued by the Pathologist attached to Dr.Oommen Memorial Ultra Sound Scan and Diagnostic Centre at Kannur. The Pathologist had recorded the clinical diagnosis as “Ruptured Tubal (Right) Ectopic”. Ovary with segment of fallopian tube with ragged Crl.A.No.1331 OF 2003 :: 7 :: margins and spongy products was examined by the Pathologist. In the report it was stated that the specimen showed blood clot with chronic villi, lined by trophoblastic cells with flattened tubal mucosa at the periphery. Ovary showed Corpus Luteum. The impression as recorded by the Pathologist in the report is extracted hereunder: “ruptured right tubal pregnancy with Corpus Luteum of ovary”. The entries in the surgery notes as well as the contents of Histopathology report will undoubtedly reveal that bleeding was noticed in the peritornium at the time of surgery. 11. As mentioned earlier, the complainant had undergone a laparotomy for ectopic pregnancy on an earlier occasion with appendisectomy. PW6, the expert, had deposed before the court that in such cases adhesion was a distinct possibility because of the previous surgery. If there was rupture there was every possibility of internal haemorrhage. She had further stated that in such cases, particularly in a case where there was a previous history of laparotomy for ectopic pregnancy, Oophorectomy might have to be done. DW1 who was yet another expert Crl.A.No.1331 OF 2003 :: 8 :: examined on the side of the defence had justified the surgical procedure followed by the accused. 12. I have carefully perused the oral testimony of the two experts. I do not find any reason to disagree with the conclusion arrived at by the learned Magistrate while holding that there was absolutely no rashness or negligence on the part of the accused while performing the surgery. 13. The contention raised by the complainant that there was no reference to Oophorectomy in Ext.P6 discharge summary is also without any merit. As noticed by the learned Magistrate, it had been specifically mentioned in Ext.P6 that right Salpingectomy had been performed on the complainant with partial removal of right ovary. As rightly pointed out by the learned counsel for the accused, the complainant was working as a Nursing Assistant in the same hospital at the time when she underwent the surgery. In fact her colleague was examined as DW3 in the case who had stated that the accused had performed the surgery with due care and caution. The learned Magistrate noticed that the case set up by the complainant that she was not Crl.A.No.1331 OF 2003 :: 9 :: aware of the Oophorectomy could not be believed at all, since she was also working as a Nursing Assistant. 14. It is trite that the scope of interference with an order of acquittal is very limited and narrow. The learned Magistrate had adverted to all the relevant aspects of the case very elaborately. I have been taken through the depositions of all the witnesses and I have also perused the documentary evidence on record. In my view, the learned Magistrate was eminently justified in holding the accused not guilty of any of the charges levelled against them. Though learned counsel for the complainant has vehemently contended that there was rashness and negligence on the part of the accused in performing the surgery which resulted in removal of the right ovary of the complainant, I am unable to accept the above contention. Similarly, the contention raised by the learned counsel that offence under Section 418 I.P.C. is attracted, since the accused had suppressed the fact that Oophorectomy was performed on the complainant cannot also be sustained at all. In my view, an offence under Section 418 will not be attracted under any circumstances. Crl.A.No.1331 OF 2003 :: 10 :: Having regard to the entire facts and circumstances and having perused the materials on record, I do not find any merit in the appeal. Hence it is dismissed. (A.K.BASHEER, JUDGE) jes