That the Appellants / Accused 1 and 2 namely 1) Kanagalakshmi (2) Yesudurai were directed to be released on bail as per the order of this Court dated 10.04.2003 and made in Crl.M.P.No.3244 of 2003 in C.A.No.583 of 2003. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14.03.2011 CORAM THE HONOURABLE MR.JUSTICE S. NAGAMUTHU Crl.A.No.583 of 2003 1. Kanagalakshmi 2. Yesudurai @Durai .. . Appellants/A1 and A2 VS Inspector of Police, Thingalur Police Station, Perundurai Taluk, Erode District ... Respondent/Complainant . . . PRAYER: Appeal filed under Section 374 Cr.P.C against the judgment dated 24.02.2003 made in S.C.No.164 of 2002 on file of the Additional Sessions Court cum Fast Track Court, Erode. . . . For Appellants : Mr.G.Mohanakrishnan For Respondent : Mr.A.Sarvanan Govt.Advocate (Crl.side) . . . J U D G M E N T The appellants are the accused Nos.1 and 2 in S.C.No.164 of 2002 on the file of the District and Sessions Judge (Fast Track Court No.I) Erode. They stand convicted for offences under Section 15(3) of Indian Medical Counsel Act 1956 and Section 316 and 304 (2) I.P.C. For the offence under Section 15 (3) of the Indian Medical https://hcservices.ecourts.gov.in/hcservices/ Council Act, they have been sentenced to under go S.I for one year and for the offence under Section 326 I.P.C they have been sentenced to undergo S.I for 7 years and to pay a fine of Rs.1,000/- in default to undergo R.I for six months and for the offence under Section 304 (ii) I.P.C., to undergo R.I for seven years. Challenging the said conviction and sentence, the appellants are before this Court with this appeal. 2. The prosecution case in brief is as follows: i. The deceased Saratha (Hereinafter referred to as D.1) was the wife of P.W.1. She was in the advanced stage of pregnancy during the month of June 2000. On 08.06.2000, the deceased developed labour pain. These two accused are husband and wife and they are not the registered medical practitioners. However, they were running a hospital known as Ganga Hospital at Nathakattuvalsi village in Erode District and they were practicing as doctors. P.W.1 went to these accused and told them about the labour pain. These two accused came to the house of P.W.1. On examining D.1, these two accused said that the pulse of D.1 was getting reduced and therefore, it was absolutely necessary to admit her forthwith in their hospital to do surgery, so as to deliver the child. Accordingly, D.1 was admitted in the Ganga Hospital run by these accused at about 6.30 p.m. These accused informed P.W.1 that they conducted surgery and delivered the child out. P.W.1 went and saw the child. she was a female child and she was alive. At about 11.00 p.m suddenly the child died. The next day, P.W.1 along with his relatives took the dead body and buried. But D.1 still was undergoing treatment under these accused. Thereafter, at about 11.00 p.m these two accused came to the house of P.W.1 and told the inmates that the condition of D.1 had become serious and they wanted to take D1 elsewhere for further treatment. P.W.1 took the second accused to P.W.2 who was owning a car. Accordingly, P.W.2 sent the car. P.W.2 also accompanied. These two accused along with P.W.1 and P.W.2 took the deceased in the car and proceeded to a hospital near Marakanam. The deceased (D1) was taken inside the hospital. They wanted P.Ws 1 and 2 to remain in the car. Within a short while, they returned to the car along with D.1 and told P.Ws 1 and 2 that she could be taken to a different hospital. Accordingly, they took her to a different hospital. The doctor in that hospital,P.W.18, told that he could not treat the patient and therefore, at about 12.00 midnight she was taken to Erode Government Hospital and admitted there as in patient. P.Ws 1 to 3 were in the hospital. At about 6.30 a.m. these two accused left the hospital. But they did not return. At about 8.00 a.m. D.1 died. Thereafter, P.W.1 came to know that these two accused are not really registered medical practitioners and they are only quacks. Therefore, P.W.1 proceeded to the Police Station and preferred a complaint to P.W.15. ii) P.W.15, the then Sub Inspector of Police attached to Thingalur Police Station, on 14.06.2000, received intimation from https://hcservices.ecourts.gov.in/hcservices/ the Government Hospital, Erode at about 11.40 a.m. about the death of D.1. Ex.P.11 is the intimation. When he enquired, he came to know that P.W.1 had gone to Thingalur Police Station. He returned to the Police Station at about 5.p.m. P.W.1 gave statement and the same was reduced into writing by P.W.15. Ex.P.1 is the said complaint. He registered a case in Crime No.186/2000 under Section 316 and 304 Part II I.P.C Ex.P.13 is the First Information Report. He forwarded the First Information Report and the complaint to the Judicial Magistrate. Then he handed over the case for investigation to P.W.17, the then Inspector of Police attached to Thingalur Police Station. On taking up the case for investigation, P.W.17, proceeded to the place of occurrence and prepared an observation mahazar Ex.P.2. in the presence of P.W.4 and another witness. He recorded the statements of P.W.1 and few more witnesses. He conducted inquest on the body of D.1 on 15.06.2000 at 6.00 a.m. During inquest he examined P.Ws 1, 2, 3, 4 and few more witnesses and recorded their statements. He prepared Ex.P.21 the inquest report. Then he made a request (Ex.P.22) to the Tahsildar, Perundurai to exhume the body of the child. (Hereinafter referred to as D.2). Accordingly, the body of the child was exhumed by P.W.12. After the body was exhumed, inquest was conducted on the same. On 14.6.2000 at 8.30 a.m. P.W.11 Dr Ganesan who was attached to the Government Hospital Gopichettipalayam was present. Thereafter, P.W.11 conducted autopsy on the body of D.2 and he issued Ex.P.8 the post mortem certificate. He found the dead body of D.2 in a highly decomposed condition. Therefore, he did not offer any opinion as to the cause of the death. iii) On the body of D.1, P.W.10 conducted autopsy on 15.6.2000 at 9.45 a.m. he found the following injuries: External Injury: "Sub Umbilical Vertical linear wound sutured with continuous suture of 16 cm long." Internal injuries: " ..... Uterus: 500 gm 14-16 weeks size. Uterus was irregularly opened at the whole length of the fundus area. No evidence of any previous suture – Edges infects, unhealthy, oedematous, and haemorrhagic cavity filled with pus and blood. Brain 100 gm conjested." She opined that the death may be due to shock and hemorrhage and post natal septicaemia. P.W.17 conducted further investigation and laid charge sheet . iv) On the basis of the above materials, the trial Court framed charges under Section 15 (3) of the Indian Medical Council Act 1956 and under Section 316 and 304 Part II I.P.C. The accused denied the charges. Therefore, the trial Court went ahead with the trial. During the trial, on the side of the prosecution as many as 17 witnesses were examined and 25 documents were exhibited. When the https://hcservices.ecourts.gov.in/hcservices/ incriminating materials were put to the accused under Section 313 Cr.P.C. they denied the same as false. They filed written statement stating that they did not treat D.1 at all and therefore, they have nothing to do with the death of D.1 as well as D.2. v) Having considered all the above materials, the trial Court found them guilty under all the charges and accordingly, punished them. That is how, the appellants are before this Court with this appeal. 3. I have heard the learned counsel for the appellants and the learned Government Advocate (Crl.side) and also perused the records carefully. 4. The foremost contention of the learned counsel for the appellants is that there is delay in preferring the complaint. According to him, though the child died as soon as its birth at the hospital allegedly run by these accused, there was no complaint given to the police immediately and Ex.P.1 was preferred belatedly after several days. The learned counsel would nextly contend that though it is stated that D.1 was admitted in the Government hospital, Erode, neither the doctor who treated her has been examined nor the medical records relating to the treatment given to D.1 have been produced. Therefore, the learned counsel would submit that the prosecution has failed to prove that D.1 was subjected to any surgery by these accused. He would further submit that without knowing the nature of the treatment given at the Government Hospital, Erode, it would not be legal to hold that these accused were responsible for the death of D.1. He would further submit that the first accused has got a certificate issued to practise Siddha. Therefore, the allegation that the appellants were quacks cannot be accepted. The learned counsel would further submit that D.1 and D.2 were never treated by these accused and the evidence let in by the prosecution in respect of these allegations are not believable. For these reasons, the learned counsel would pray for the acquittal of the accused. 5. But the learned Government Advocate (Crl.side) would submit that P.Ws 1, 2 and 3 have categorically stated about the running of the hospital by these accused and the treatment given by them to D.1. He would also submit that P.W.10 also stated that the death was due to improper surgery conducted on D.1 He would also submit that though it is true that the doctor who treated at the Government Hospital, Erode has not been examined, the same has not caused any dent in the case of the prosecution. For these reasons, according to the learned Government Advocate, the conviction and sentence imposed by the trial Court does not warrant any interference at the hands of this Court. https://hcservices.ecourts.gov.in/hcservices/ 6. I have considered the above submissions. P.W.3, is the father of D.1. P.W.1 is the husband of D.1. They have categorically stated about the fact that the deceased was in advanced stage of pregnancy. They have also stated that these two accused are running a private hospital. P.Ws 1 and 3 have further stated that D1 was admitted in the said hospital for treatment. Though the said fact is disputed by the accused, I do not find any reason to reject the evidences of P.Ws 1 and 3 in this regard. P.W.2 would also state that these two accused were running a hospital and treated the patients. From the evidence of these three witnesses, it is crystal clear that these two accused were running a hospital and they were practising medicine. Admittedly, the second accused has got no authorization to practice medicine. In so far as the first accused is concerned, the learned counsel would submit that Siddha Maruthuva Gurukgulam at Madurai issued a certificate to her to practise Siddha. But at the same time, the learned counsel is not in a position to inform the Court as to whether the said Gurugulam has got any authority to issue the said Certificate to the first accused to practise medicine. Therefore, it is crystal clear that both the accused have practised medicine in gross violation of provisions of Indian Medical Council Act and thus the offence under Section 15 (3) of the Indian Medical council Act 1956 has been established and so they are liable to be punished under the said provision. 7. Now coming to the offence under Section 316 I.P.C. it is the case of the prosecution that after the child was born, the child died in the hospital run by these accused and the body was thereafter buried. Assuming that these allegations are true, still, it is doubtful as to whether the said act of these accused would attract the offence under Section 316 I.P.C. Section 316 I.P. reads as follows: “ 316. Causing death of quick unborn child by act amounting to culpable homicide: Whoever does any act under such circumstances, that if he thereby caused death he would be guilty of culpable homicide, and does by such act cause the death of a quick unborn child, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.“ A cursory reading of the above provision would make it clear that the said offence could be attracted if only death of such unborn child is caused. In this case, P.W.1 has stated that the child was alive. Therefore, the offence under Section 316 I.P.C has not been established by the prosecution. To this extent the conviction recorded by the trial court under Section 316 I.P.C needs to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 8. Now coming to the offence under Section 304 Part II I.P.C, I find that the trial Court was right in convicting these accused. The reasons are as follows: i) P.W.1 has categorically stated in a vivid manner as to how the deceased was admitted in the hospital run by these two accused for treatment. He has further stated that after the child was born, these two accused informed P.W.1 that surgery was conducted by them and the child was accordingly delivered. P.W.10, doctor who conducted post mortem on the body of D.1 also found a surgical wound on the abdomen. She has further found that there was an irregular open wound at the uterus but the same was not closed properly. ii) It is the contention of the learned counsel for the appellants that after D.1 was admitted in the Government Hospital, Erode, surgery would have been done, which would have resulted in her death. Therefore, according to the learned counsel, the surgical wound found at the abdomen of D.1 cannot be attributed to these accused. It is for this reason, the leraned counsel raised the contention that the doctor who treated D.1 at the Government Hospital, Erode has not been examined and case sheet also has not been marked. This, according to the learned counsel, is fatal to the case of prosecution. Though attractive, this argument deserves only to be rejected. iii) For a moment, I may refer to Exs. P,11 and P.12. Ex.P.11 is the death intimation given by the duty doctor on 14.06.2000 at about 8.35 a.m wherein he has stated as follows: "D1 died in ICCU. Suspicion in the surgery done prior to admission in the Erode Government Hospital and the body was sent to mortuary. “ Ex.P.12 is the intimation given to the police after the admission of the deceased on 14.06.2100 wherein the doctor has recorded “ post natal septicaemia-the alleged cause - Suspicion in the surgery done prior to admission.” The genuineness of these two documents has not been disputed by the accused, when they were proved in evidence. These two documents would go a long way to show that the surgery was not conducted at the Government Hospital Erode and as a matter of fact, the surgery had already been conducted elsewhere. This clearly go to show that the surgical wound found on the abdomen of D.1 was made only by these accused. Apart from that, in the evidence of P.W.2, it is stated that these accused took the deceased in his car to the hospital of P.W.7 and 10 and thereafter, they took D.1 to the Government Hospital Erode. The conduct of the accused to disappear from the Government Hospital after the condition of D.1 became very serious also gives an adverse inference against the accused. This part of the evidence of P.Ws 1 and 2 would go a long https://hcservices.ecourts.gov.in/hcservices/ way to show that the death was caused only by these two accused who conducted surgery on the deceased. iv) Now coming to the cause of death of D1, P.W.10 has categorically stated that the death was due to shock and hemorrhage and due to post natal sepaticaemia. As I have already stated P.W.10 found that the abdominal surgical wound was closed but the irregular surgical wound on the uterus was not closed. This was surely the cause for the death of D.1. So, I have no hesitation to hold that the death of D.1 was only caused by these two accused. v) Now coming to the offence, the learned counsel would rely on a judgment of the Hon’ble Supreme Court in Juggankhan VS The State of Madhya Pradesh reported in A.I.R.1965 Supreme Court 831 to contend that at the most, the offence said to have been committed by these accused would only fall under Section 304 A I.P.C But I am not able to agree with the said argument, for the reason that in the case before the Hon’ble Supreme Court, the case was registered against a Homoeopathy doctor. The said doctor administered 24 drops of Stramonium and a leave of dhatura without studying its effect and the patient died of poisoning. The Hon'ble Supreme Court found that the poisonous contents of the leaf had not been satisfactorily established and thus the prosecution failed to prove that the dose given to the deceased was necessarily fatal. Therefore, the Hon'ble Supreme Court has held that Section 299 would not be satisfied as it cannot be held that the accused administered the stramonium drops and dhatura with the knowledge that he was likely by such an act to cause the death of the deceased. In those circumstances, the Hon'ble Supreme Court convicted the accused under Section 304-a I.P.C. But the facts of the present case are distinguishable. Here, admittedly, these two accused were not registered medical practitioners and did not have any experience in surgery. Surgery is not an ordinary act, which can be done by any individual. Even trained doctors at times are nervous of doing surgery because of the fear for consequences of such surgery. Here, two quacks, who did not have any medical knowledge had gone to the extent of performing surgery knowing the consequences. Thus the act of the accused squarely falls under third limb of Section 299 I.P.C. They could be attributed with knowledge that the act of surgery is likely to result in the death. Thus the offece said to have committed by these accused would squarely fall under Section 304 I.P.C. Therefore, in my considered opinion, the trial Court was right in convicting these appellants under Section 304 part II. I.P.C. 9. Now coming to the quantum of sentence, the learned counsel would submit that the appellants are wife and husband and there is no history of any bad antecedent either before or after the incident. He would further submit that the first appellant is a woman and therefore, some more leniency can be shown to her. He would https://hcservices.ecourts.gov.in/hcservices/ further submit that the accused were in jail for about one year. The learned Government Advocate is not in a position to dispute these factual aspects. 10. Having considered the totality of circumstances and the facts placed before this Court, more particularly, the first appellant is a woman and also the second appellant has got no other bad antecedent, I am of the view that it would be in the interest of justice to reduce the substantive sentence of imprisonment to two years, insofar as the first appellant is concerned and to five years insofar as the second appellant is concerned for the offence under Section 304 Part II I.P.C. 11. In the result, the appeal is partly allowed in the following terms: i. The conviction and sentence imposed on both the appellants for the offence under Section 15 (3) of the Indian Medical Counsel Act is confirmed; ii. The conviction and sentence imposed on the appellants for the offence under Section 316 I.P.C is set aside and they are acquitted of the said charge; iii. The conviction of the appellants under Section 304 Part II is confirmed. However, the substantive sentence of imprisonment imposed for the said offence by the trial Court is reduced to two years R.I for the first appellant and it is reduced to Five years R.I for the second appellant. Sentences shall run concurrently; iv. The bail bond, if any, executed by the appellants shall stand discharged; v. In all other respects, the appeal stands dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar pal To 1. The District Munsif cum Judicial Magistrate Perundurai 2. -Do-Thro The Chief Judicial Magistrate, Erode https://hcservices.ecourts.gov.in/hcservices/ 3. The Additional Sessions Judge cum Fast Track Court, Erode. 4. -Do-Thro the Principal Sessions Judge, Erode 5. The Superintendent, Central Prison, Coimbatore 6. The Inspector of Police, Thingalur Police Station Perundurai Taluk, Erode 7. The Public Prosecutor, High Court, Madras 1 cc To Mr.G.Mohanakrishnan, Advocate, SR.18642 Crl.A.No.583 of 2003 SP(CO) sra 01/04/2011 https://hcservices.ecourts.gov.in/hcservices/