Crl.Revision No. 2542 of 2008 -1- In the High Court of Punjab and Haryana at Chandigarh Crl.Revision No. 2542 of 2008 Date of Decision:May 07, 2009 Sanjay ---Petitioner versus State of Haryana and another ---Respondents Coram: HON'BLE MRS. JUSTICE SABINA *** Present: Ms. Rahish Pahwa Dedeja,Advocate, for the petitioner *** SABINA, J. Sanjay-petitioner has filed this petition challenging order dated 2.7.2007 passed by Additional Sessions Judge, Kaithal vide which the revision petition filed by respondent no. 2 against order 24.8.2006 whereby charges were framed against him under Section 336, 337 of the Indian Penal Code (hereinafter referred to as “IPC”) was set aside. Prosecution story as noticed by the learned Sessions Judge, in the impugned order in para 2 of its judgment is as under:- “Briefly stated, the complainant Smt. Sunehri Devi lodged FIR No.351 dated 29.7.2005 in police station City, Kaithal alleging that she was operated upon in the year 1993 at hospital by Dr. Neeru Garg Crl.Revision No. 2542 of 2008 -2- present accused/revisionist and after 12 years of operation she suffered severe pain. She was again operated by the doctor and at the time of said second operation, she came to know that at the time of first operation, De. Neeru Gargt had left Artri-Forcep in the stomach of the complainant negligently. The Investigating Agency during investigation of this case collected prescription slip of the complainant as well as Artri-Forcep which was extracted from the stomach of the complainant at the time of second operation and has also sought opinion of the doctor who performed second operation regarding the present of Artri-Forcep in the stomach of the complainant and after the completion of all other usual acts of investigation and interrogation, the final report under /Section 173 Cr.P.C. was and forwarded against the accused/revisionist for the commission of offence punishable under Section 337 and 338 of IPC.” Petitioner was operated upon in the year 1993 in a hospital run by respondent No. 2. After operation petitioner developed pain and medicines were given to her by the doctor. After 12 years petitioner was again operated upon by another doctor and at that time artri-forcep was removed from the stomach of the petitioner. Learned Additional Sessions Judge, Kaithal while allowing the revision petition has observed as under:- “12.However, after going through the facts and circumstances of the case and arguments advanced on behalf of both the parties, it emerges that the complainant reported the matter to the police that she was operated upon 12 years ago by the accused/revisionist and after a period of 12 years she Crl.Revision No. 2542 of 2008 -3- developed pain in her stomach and thereafter she again contacted another doctor and was again operated and during said second operation, the Artri-Forcep was recovered which was left by the accused/revisionist at the time of first operation in a negligent manner and on account of said negligence allegedly on the part of accused/revisionist, the police has registered the FIR and after submission of final report under Section 173 Cr.P.C., the learned Chief Judicial Magistrate vide order dated 24.8.2006 has framed the charges against the accused/revisionist for the commission of offence punishable under Section 336 and 337 IPC which has been challenged by way of present revision petition. 13. However, after going through the preliminary evidence on the file, it emerges that the complainant/respondent has relied upon some photocopy of the Report of Automatic Computer Laboratory and Diagnostic Clinic, Kaithal dated 13.3.1993 which is report of said laboratory and in the said report, the name of the accused/revisionist has been mentioned as “Referring Doctor”. Except the said photo copy of the report of Laboratory dated 13.3.`1993, there is no other documentary evidence on the file in order to infer that the complainant was ever operated upon by the accused/revisionist. The complainant/respondent has not summoned any record from the hospital where she was allegedly operated upon so as to infer that the complainant/respondent was ever operated upon for Ovarian Tumor and that too by he Dr. Neeru Garg who is Crl.Revision No. 2542 of 2008 -4- present accused/revisionist. Simply mentioning the name of referring doctor in the Laboratory Report, it cannot be assumed that the complainant/respondent was operated upon by the accused/revisionist and on account of her negligence Artri- Forcep was left in the stomach of the complainant/respondent. Therefore, there is no link evidence on the file in order to infer that the accused/revisionist had performed operation upon the complainant/respondent and in the absence of any such cogent link evidence, no prima facie case can be said to have been made out against the accused/revisionist.” It is a case of great hardship. Petitioner has suffered due to the negligence of the doctor who had performed the operation. But prima facie some material is required to establish that the respondent No. 2 had performed the operation to make her criminally liable for her negligence. Since the petitioner has failed to place on record any documentary evidence to the effect that initially operation was ever conducted by respondent No. 2 and the only document placed on record is the photo copy of the report dated 13.3.2009 of the Automatic Computer Laboratory and Diagnostic Clinic, Kaithal wherein the name of respondent No. 2 is mentioned as referring doctor, the view taken by the learned Additional Sessions Judge, Kaithal, that there is no link evidence on the file to infer that respondent No. 2 had performed operation in question is correct. Hence no ground for interference is made out. Crl.Revision No. 2542 of 2008 -5- Accordingly, this petition is dismissed. The application seeking condonation of delay in filing the revision petition is merely academic and is disposed of as such. (SABINA) JUDGE May 07, 2009 PARAMJIT