1 I N THE HI GH COURT OF JUDI ACATURE FOR RAJASTHAN AT JAI PUR BENCH, JAI PUR S.B. CRI MI NAL MI SC. PETI TI ON NO.5 7 9 / 2 0 0 3 ( KESHAVDATT SHARMA VS. STATE OF RAJASTHAN) Dat e of Ju dgm en t : 2 0 .0 7 .2 0 1 0 HON'BLE MR. JUSTI CE SATYA PRAKASH PATHAK, J. Mr. Biri Singh Sinsinwar with Mr. Rajesh Choudhary, for petitioner. Mr. G.S. Fauzdar, Government Advocate for the State. This petition has been filed under Section 482 Cr.P.C. against the order dated 31.07.2002 passed by the Judicial Magistrate, Todabheem taking cognizance against the accused- petitioner under Section 304-A IPC and that of the order dated 09.04.2003 passed by the learned Addl. Sessions Judge, Hindaun City in Revision Petition No.51/ 2002 whereby the revision petition filed by the petitioner was dismissed. In brief, the prosecution case is that on 30.04.2002 an FIR was lodged at about 1.30 AM in the Police Station Todabheem by Ganga Sahai Bairwa alleging therein that in the evening of 29.04.2002 at about 8.00 PM his brother Brij Mohan felt chest pain, therefore, Chotelal was asked to call the Compounder Keshavdatt Sharma who is accused-petitioner in this petition. The accused-petitioner came there and gave some medicine through injection to Brij Mohan (since deceased) as a result of which deceased started vomitting and his condition deteriorated and was advised by the Compounder to take him to the hospital immediately. It is also the case of the prosecution that in 2 Government Hospital (Primary Health Centre) Todabheem the deceased was seen by doctors and again he was administered some injection by one Compounder namely; Mr. Anant Kumar Pareek and soon thereafter it was informed that Brij Mohan had expired. It is also the case of the prosecution that on account of giving injection to the deceased by the accused-petitioner, the deceased vomitted and subsequently died. It was also alleged that the deceased had died on account of the negligence of the accused-petitioner. On the basis of above written report, FIR No.165/ 2002 was registered at the Police Station Todabheem under Section 304A IPC and investigation commenced. During the course of investigation a Medical Board was constituted to conduct postmortem on the dead body of the deceased. The post-mortem was conducted and in the opinion of the Medical Board, the cause of death was Cardiac arrest following recent inferior wall myocardial infarction. The Police after investigation filed Final Report in the matter finding that no case was made out against the accused-petitioner. The learned Magistrate after hearing on the protest petition on 31.07.2002 and on perusal of the statement of the witnesses and postmortem report, found negligence on the part of the accused-petitioner and took cognizance under Section 304A IPC and the accused was summoned through bailable warrant. The accused-petitioner having felt aggrieved 3 challenged the order taking cognizance before the Revisional Court (Addl. District & Sessions Judge, Hindaun City, Rajasthan). The Revisional Court after hearing both the sides dismissed the revision petition on 09.04.2003. Hence, the present criminal misc. petition has been filed. I have heard the learned counsel for the accused- petitioner as well as the learned Public Prosecutor for the State and carefully perused the material available on the file. It has been contended by the learned counsel for the petitioner that in the instant case the cause of death is heart attack, therefore, the death was natural one and it was not on account of any act or negligence on the part of accused- petitioner, therefore, order taking cognizance by the Magistrate requires to be set aside and the order of the Revisional Court also requires to be set aside. It is also contended that the doctors have stated in their statements in this case that in emergency when a patient is seen by the Compounder he can give necessary treatment to save the life of a patient. According to learned counsel, in the instant case it is alleged that petitioner gave some medicine through injection to the deceased which reacted as the deceased vomitted and thereafter he was brought to the hospital but could not be saved in spite of all required precautions taken without any delay and the cause of death being heart attack then, how the accused can be held responsible for committing an offence under Section 304A IPC in 4 the absence of any material to show that in any manner the accused was responsible for causing death. Learned counsel has also invited attention of the court towards the statements of three witnesses Dr. Vijay Narayan, Compounder Anant Kumar and Dr. Akhil Shrivastav and submitted that all these three witnesses including two doctors have stated in their statement recorded during the course of investigation that there was no fault of the Compounder. It is also stated by them that in emergency, looking to the need of a patient, the Compounder is authorized to provide proper treatment. It is submitted further that in the above set of circumstances, whatever material available on record even if is taken as it is, then, also conviction can not be based under Section 304A IPC against the petitioner, therefore, order taking cognizance requires to be set aside. In support of his submissions, the learned counsel has placed reliance on the decision in case of Har ish ch an dr a Pr asad Man i & Or s. VS. St at e of Jh ar k h an d & An r . reported in AI R 2 0 0 7 SC 1 1 1 7 . On the other hand, the learned Public Prosecutor has submitted that the learned Magistrate as well as learned Revisional Court both have found that there was negligence on the part of the petitioner, therefore, the act of the accused was of negligence and by his act death has been caused, therefore, order taking cognizance requires to be maintained. After having considered the submissions and carefully 5 perused the material on record, I am of the opinion that in the instant case from the material on record it prima facie appears that the cause of death was heart attack as found by the Medical Board in the postmortem report, therefore, without any manner of doubt it can be said that the death of the deceased was due to heart attack and it cannot be linked with the act of the accused-petitioner. There was no reaction of the injection on the body of the deceased as nothing has been stated in the postmortem report, though, when the body was given for postmortem, it was informed by the Police to the Board that deceased died due to reaction of the injection given to the deceased. The Board after conducting postmortem examination on the dead body of the deceased clearly opined that the deceased died due to heart attack as such the death was not homicidal. Two doctors namely; Vijay Narayan and Akhil Shrivastav in their statement recorded under Section 161 Cr.P.C. have clearly stated that there was no reaction of the injection on the body of the deceased and the Compounder in emergency, where need so arise, can give necessary treatment to the patient. The above doctors have also stated that it was not the act of the accused which could be said to be the cause of death of the deceased. The Police after investigation also reached to the conclusion that no case was made out of negligence on the part of the petitioner, therefore, submitted Final Report. The learned 6 Magistrate referring to the statement of the doctors and the postmortem report, took the cognizance in the case without assigning any reason. It appears that the learned Magistrate has misread the evidence and the opinion recorded by the doctors in relation to cause of death, therefore, in my opinion unless there is some material on the file to show that the act of the accused was prima facie such which had put the life of the deceased in danger till then how the accused can be held responsible, negligent in performing his part of duty. Accused- petitioner was called from his house and he found that deceased was feeling chest pain. He administered some medicine through injection to the deceased and thereafter the deceased was taken to the hospital and there also some injection was given to him and subsequently he died. The above act of accused-petitioner nowhere suggests that he was negligent at any point of time. In the case of Harishchandra Prasad Mani (Supra) the Hon'ble Supreme Court in Para 9 has observed as under: “We have carefully perused the entire record placed before us and find that there is not even an iota of evidence or any material on record against the appellants. It is true that at this stage it is not necessary that the complainant or prosecution must prove its case beyond reasonable doubt, but at least there must be some material on the basis of which cognizance is taken and summon is issued. Cognizance cannot be taken merely on suspicion as has been evidently been done in this case.” In view of the above discussion and also in view of 7 the fact that in the opinion of the doctors, the cause of death was heart attack, it cannot be said that the accused-petitioner has committed an offence punishable under Section 304A IPC. The learned Magistrate as well as the learned Revisional Court have not properly appreciated the material available on record and also the legal position, therefore, both the orders under challenge suffer from legal infirmity and require to be set aside. In the result, the criminal misc. petition stands allowed and the order of the Magistrate dated 31.07.2002 and that of revisional court dated 09.04.2003 are hereby set aside. ( SATYA PRAKASH PATHAK) ,J. Mohit item No.14