CR.A/693/1997 1/31 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 693 of 1997 With CRIMINAL REVISION APPLICATION No. 284 of 1997 For Approval and Signature: HON'BLE SMT. JUSTICE ABHILASHA KUMARI ===================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ===================================================== STATE OF GUJARAT Versus BHUPENDRABHAI NANDLALBHAI AND ANOTHER ===================================================== Appearance : CRIMINAL APPEAL No. 693 of 1997 Mr.K.T.Dave,learned APP for appellant MR Yogesh S.Lakhani with Mr.J.A. ADESHRA for Opponent(s) : 1 – 2. CRIMINAL REVISION APPLICATION No. 284 of 1997 Mr.P.S.Champaneri for the petitioner. MR Yogesh S.Lakhani with Mr.J.A. ADESHRA for CR.A/693/1997 2/31 JUDGMENT respondent Nos.1 and 2 Mr.K.T.Dave,learned APP for the respondent No.3 ===================================================== CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 12/10/2007 COMMON ORAL JUDGMENT 1. By way of this appeal under Section 378 of the Code of Criminal Procedure, 1973, the State of Gujarat has challenged the judgment and order dated 16th May,1997, passed by the learned Chief judicial Magistrate, Surendranagar, in Criminal Case No.7352 of 1996 whereby both the respondents have been acquitted of the charges for offences punishable under Sections 304A and 114 of the Indian Penal Code. 2. The respondents herein are practising Doctors who have been charged for having caused the death of Sarojben, wife of the complainant, due to rashness and negligence. In order to appreciate the matter in its proper perspective it will be necessary to narrate the facts which have given rise to the case. 3. The case of the prosecution is based upon the complaint lodged by Ganshyambhai Rasiklal Soni on CR.A/693/1997 3/31 JUDGMENT 17th May, 1996, at City Police Station, Surendranagar, to the effect that, on the fateful day of 17th May,1996, his wife Sarojben was to undergo an operation for nasal polyps at the Hospital of the respondents. For this purpose, an appointment had been fixed on the previous day. Therefore, on 17th May 1996, Sarojben went to the Hospital of the respondents at 11.30 A.M. It is stated in the complaint that Sarojben was taken into the operation theatre at about 1.45 P.M. and the complainant was told by the respondents that the operation would take approximately 45 minutes. However, when the door of the operation theatre did not open till 4.30 P.M., the complainant knocked on the door and the respondent No.1 came out of the theatre. During the operation, respondent No.2 was also present there. It is further narrated in the complaint that on the complainant enquiring from the respondent No.1, he was informed that the operation had failed and the wife of the complainant had suffered heart failure. Thereupon, the complainant informed his close relatives and called them to the Hospital and also lodged the complaint as narrated above. 4. Upon the complaint being registered, the CR.A/693/1997 4/31 JUDGMENT investigative machinery was set into motion and the dead body of Sarojben was sent for post mortem. The inquest panchanama and panchanama of the scene of offence were prepared and the statements of witnesses were recorded. In addition, statements of Doctors specialising in the field were also recorded and a prima facie case having been found against the respondents, the charge-sheet was submitted in the competent court. The relevant statements of the prosecution witnesses and medical experts were put to the respondents. In their statements under Section 313 of the Code of Criminal Procedure, the respondents have denied being guilty of rashness or negligence in performing the operation upon the wife of the complainant. The respondents have stated that they have followed the correct medical procedure and treatment, which is given in the normal course, as known to medical science. A heart specialist was also called to treat the deceased. The defence of the respondents is that they have taken all due care and caution and given proper treatment to the deceased and, therefore, her death cannot be attributed to rashness or negligence in the performance of their professional duty. Accordingly, the case was put to trial. CR.A/693/1997 5/31 JUDGMENT 5. In support of the case of the prosecution, as many as twelve witnesses were examined and certain documentary evidence was also brought on record. After having heard the submissions advanced by the learned counsel for the parties and having appreciated the oral and documentary evidence led by the prosecution, the learned trial Magistrate came to the conclusion that the prosecution has completely failed to prove the negligence of the accused doctors and recorded a finding of acquittal in favour of the respondents, giving rise to the present appeal. 6. I have heard Mr.K.T.Dave, learned Additional Public Prosecutor for the appellant and Mr.Yogesh S.Lakhani with Mr.J.A.Adeshara for the respondents and have scrutinised the record summoned from the trial court. Mr.K.T.Dave, learned Additional Public Prosecutor has vehemently argued that the impugned judgment and order of acquittal passed by the learned trial Magistrate is contrary to law and the evidence on record. He has submitted that the trial court has not appreciated the facts as brought out in the post mortem report that the deceased died due to failure of the respiratory system and that there was evidence CR.A/693/1997 6/31 JUDGMENT of blood found in the trachea, which ultimately resulted in her death. It is further submitted by the learned Additional Public Prosecutor that the medical evidence on record as well as the evidence of the experts has not been properly appreciated by the trial Court. According to the learned Additional Public Prosecutor, there is sufficient evidence on record to prove that the respondents were negligent in the performance of the operation, due to which the wife of the complainant died, even though the operation was a minor one. For the reasons stated above, Mr.K.T.Dave, learned Additional Public Prosecutor, has urged that this court should allow the appeal and set aside the order of acquittal. 7. On the other hand, Mr.Yogesh S.Lakhani with Mr.J.A.Adeshara for both the respondent Doctors has forcefully submitted that the prosecution has completely failed to establish that the death of Sarojben was caused due to rashness and negligence on their part. He submitted that the respondents have taken all possible care and caution in the performance of the nasal operation of the deceased. He has further submitted that there is evidence to show that when the deceased was suffering from a CR.A/693/1997 7/31 JUDGMENT sudden collapse, the respondents adopted all possible means to revive her. An endotracheal tube, to facilitate the breathing of the deceased, was inserted and a heart specialist was also called in order to treat the patient, who was suffering from cardiac arrest. Mr.Yogesh S.Lakhani has submitted that in spite of giving all possible treatment to the deceased, as is evident from the evidence on record, the patient suffered irreversible cardiac arrest and therefore, the prosecution has failed to establish that her death was a result of rashness or negligence attributable to the respondents. The learned counsel for the respondents has drawn my attention to various aspects of the oral and documentary evidence on record, which shall be referred to in their proper place, hereinafter. It is submitted that the trial court has come to a correct conclusion in recording a finding of acquittal in favour of the respondents and this court, in appeal, ought not to disturb the same since there is no illegality or infirmity in the judgment and order of the trial court. The learned counsel for the respondents has placed reliance upon two judgments of the Apex Court, Dr.Suresh Gupta v. Govt.of N.C.T.of Delhi, reported in AIR 2004 SC 4091 CR.A/693/1997 8/31 JUDGMENT and Jacob Mathew v. State of Punjab and another, reported in 2005(3) Crimes 63 (SC) in support of the submissions made by him. On these grounds, it is prayed that the appeal be dismissed. 8. In view of the rival submissions of the parties, it becomes necessary to re-evaluate and re-appreciate the reasons recorded by the trial court in the light of the evidence on record, in order to come to a conclusion whether, the finding of acquittal has been correctly recorded. This exercise has to be undertaken, keeping in sight the principles of law enunciated by the Supreme Court as applicable to an appeal against acquittal. It is now settled law that although the appellate court is vested with power to re-appreciate and re-evaluate the evidence on record, generally, it would not interfere with an order of acquittal unless it is found that the judgment of the trial court is perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. (See Ramesh Babulal Doshi v. State of Gujarat (1996)9 SCC 225). Further, as held in Kali Ram v. State of Himachal Pradesh, AIR 1973 SC 2773 where two views are possible on the CR.A/693/1997 9/31 JUDGMENT evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. It is on the touchstone of the above principles that this court is called upon to decide whether, the respondents have been rightly acquitted of the charge of causing the death of Sarojben by their rashness and negligence during the operation. 9. It would be useful to advert to Section 304A of the Indian Penal Code, which reads as under: “304A. Causing death by negligence.- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” 10. To constitute an offence under Section 304A, it is incumbent upon the prosecution to establish that the death has occurred due to a rash and negligent act of the accused, which does not amount to culpable homicide. It would also be necessary to advert to the salient features of the testimonies of the prosecution witnesses. 11. P.W.1 Ganshyambhai Rasiklal Soni is the CR.A/693/1997 10/31 JUDGMENT complainant and has been examined at Exh.5. He has stated in his deposition that on 16th May, 1996 he had taken his wife Sarojben to the Hospital of the respondents for treatment, and it was decided that She would be operated upon for nasal polyps on the next day i.e. on 17th May, 1996. The consent letter for the operation (Exh.7) was signed by him and Sarojben was taken into the operation theatre at about 1.45 P.M. on 17th May,1996. It is stated that the respondent No.1 had informed him that the operation would take about 45 minutes. However, when sufficient time had elapsed, he started to knock upon the door of the operation theatre and the respondent No.1, on opening the door, informed him that Sarojben had suffered heart failure and had expired. In his examination-in-chief, Ganshyambhai states that the respondents behaved in an uncivilised manner with him and did not inform him when Sarojben suffered heart failure. However, in cross-examination this witness admits that, during the period when he took Sarojben to the Hospital of respondent No.1, he was having very good family relations with the said Doctor. P.W.Ganshyambhai states in his examination- in-chief that it was he who called Dr.Gedia, the heart specialist, after being informed by the CR.A/693/1997 11/31 JUDGMENT respondents that Sarojben had suffered heart failure. However, in his cross-examination P.W. 1 states that when he entered the operation theatre, the respondent No.2 was giving massage to the deceased. Although he states that at that time there was no oxygen tube in the nose of the deceased, in the next sentence he admits that when the heart massage was being given to his wife, the oxygen tube was present in her nose. P.W.1 also admits that he did not go to call Dr.Gedia, the heart specialist, and neither did he telephone him. On the whole, the testimony of this witness is almost in conformity with the narration in the complaint and he has tried to build a story that his wife died due to the negligence of the respondents. 12. P.W.2 Sushilaben Lalitbhai, who has been examined at Exh.12 is one of the panch witnesses of the inquest panchanama at Exh.13. P.W.3 Naineshkumar Bhogilal,who has been examined at Exh.14 is also the panch witness and the testimony of this P.W. is formal in nature. 13. P.W.4 Nirmalaben Rameshchandra Soni,who has been examined at Exh.18 is the sister of P.W.1. The CR.A/693/1997 12/31 JUDGMENT deceased was her brother's wife. The testimony of this witness is not of much help to the case of the prosecution. From her cross-examination it transpires that the deceased had been taking treatment from the respondents for nasal polyps prior to 16th May, 1996. She has stated that she did not enter the operation theatre and has not seen anything regarding the operation. 14. P.W.5 Dhaneshbhai Chimanlal Soni, who has been examined at Exh.19, is the brother of the deceased. His examination-in-chief is almost a repetition of the statements made by P.W.1. However, in his cross- examination this witness admits that the respondent No.1 telephoned Dr.Gedia, who is a heart specialist and also one Dr.Acharya, in his presence. He further states that when he entered the operation theatre a massage was being given to his sister by respondent No.2 and this massage continued till Dr.Gedia's arrival. It is also admitted by this witness that Dr.Gedia examined the deceased in his presence. He, however, states that no oxygen pipes were present in the mouth of the deceased. 15. P.W.6 Rasiklal Jerambhai Soni, who has been CR.A/693/1997 13/31 JUDGMENT examined at Exh.20, is the father-in-law of the deceased. His testimony is not of much importance, since he arrived at the Hospital after the operation had started. He does not seem to have any direct knowledge of the events that took place. 16. One of the most important prosecution witnesses is P.W.7, Bansidhar Ganpatlal Gupta who has been examined at Exh.24. He has performed the post mortem on the dead body of the deceased. Since the testimony of this witness is very material, it is being adverted to in some detail. In his examination-in- chief Dr.Gupta states that when he was serving as Professor and Head of the Department of Medicines at M.P.Shah Medical College, Jamnagar, on 18th May 1996 at 9.30 A.M., the Head Constable on duty at Surendranagar had brought the dead body of Sarojben, wife of Ganshyambhai to him, for performing the post mortem, which was started at 11.0 A.M. by him and his colleague, Assistant Professor Dr.S.Kumar, and completed at 1.15 P.M. on the same day. On examining the dead body, it was found that Hospital band-aids were applied on the nose and upon opening the same, a sleek and long piece of gauze packing was found in both the nostrils and blood was oozing out from the CR.A/693/1997 14/31 JUDGMENT nose and mouth. The fingers and nails of the dead body had turned greenish in colour and on the left hand side of the chest, in the region of the heart, six marks of injection were detectable. The dead body had other marks of injections on the : (1) outer portion on left wrist, (2) front portion of left elbow, (3) back portion on of right hand, (4) front portion of right elbow and, (5) front portion of right leg. Besides these marks, other marks of injection were also found on the right and left buttocks of the dead body. On dissection of the nose, it was found that the wind pipe and the inner part of the nose were soaked with blood and the space below the said packing in the nose was reddish, and full of blood. In the wind pipe of the deceased, the presence of blood mixed with mucus, as well as froth was detected. Both the lungs were congested and on cutting them open, a liquid substance mixed with froth oozed out. After stating that the organs such as lungs, heart, liver, kidneys etc. were retained for histo-pathological examination, this witness states that after receiving the report of the examination and after reading the clinical papers of the case, in his opinion the death of Sarojben occurred due to asphyxia and heart failure, due to CR.A/693/1997 15/31 JUDGMENT blood entering into the wind pipe, from the site of the operation. Dr.Gupta further states that the post mortem report at Exh.25 has been prepared in the hand writing of his colleague Dr.S.Kumar and, in that report, the final cause of death was kept pending. It is further stated by P.W. Dr.Gupta that on 25th July,1996, the final death report had been given in which the cause of death was the same as stated above. The final opinion sent to the police regarding the cause of death of the deceased is at Exh.27. In his testimony, P.W. Dr.Gupta categorically states that he had not found any evidence of negligence in the earlier treatment given by the respondents. This witness was cross-examined at great length but has consistently stood his ground. In his cross-examination, Dr.Gupta has stated that the death of Sarojben has not occurred due to excess bleeding. He has also categorically stated that if the endotracheal tube is inserted,then blood does not collect in the trachea and the case papers of the deceased show that the endotracheal tube was inserted. This witness states that if the tube is removed and there is bleeding, without clotting, then blood comes down by force of gravity, and after CR.A/693/1997 16/31 JUDGMENT death, within twelve to eighteen hours, the blood converts itself into a liquid form. Dr.Gupta further states that when he examined the dead body for the first time, the death had occurred within 24 hours. Regarding the presence of blood in the trachea of the deceased, Dr.Gupta states that due to the blood converting itself into liquid form, the possibility of it being found in the trachea cannot be ruled out and it cannot be said that blood had collected in the trachea, during the operation. This witness further states that the death of the patient could occur partly due to asphyxia and partly due to stopping of the heart. P.W. Dr.Gupta categorically states that as per his belief, firstly Sarojben had trouble in breathing and thereafter the heart stopped and thereafter the breathing also stopped. He has clearly stated in terms, that the Doctors who treated the deceased had made all efforts to revive the heart by giving injections and after the heart stopped, the Doctors were not in a position to give any other treatment. This witness goes on to state that in his opinion, the respondent Doctors had given every possible treatment available in medical science. Dr.Gupta has deposed that he, alongwith his assistant, had examined the lungs, eyes, brain, CR.A/693/1997 17/31 JUDGMENT liver, spleen and kidney of the deceased and did not find any petechial haemorrhage which is found if death had occurred due to complete respiratory obstruction. Dr.Gupta has ruled out any possibility of over-dose of medicine. This witness has remained firm in his testimony to the effect that during the operation the endotracheal tube was inserted and complete arrangement for breathing was made by the Doctors and the stopping of breathing did not relate to any negligence during the operation. He has concluded his testimony by stating that due to unknown reasons, there are instances when the heart stops functioning. Sometimes, even for negligible reasons, the heart stops working due to vagal shock and in this case, the possibility of vagal shock cannot be ruled out. 17. P.W.8 Prabhatba Bahadursingh has been examined at Exh.30. At the relevant point of time, she was working as a Nurse in the Hospital of respondent No.1. In her examination-in-chief she states that the deceased was admitted in the Hospital for undergoing an operation for her nasal problems on 17th May,1996. P.W. Prabhatba states that she was in the operation room when the operation on Sarojben was being CR.A/693/1997 18/31 JUDGMENT performed. This witness further states that during the course of the operation, Sarojben started having difficulty in breathing, therefore, the respondent No.2 inserted the oxygen pipe in her throat but the patient could not survive and expired in the operation theatre. In her cross-examination, this witness states that the respondent No.2 administered anaesthesia to the patient and after the operation when the Doctor was shifting the patient to the ward, and the endotracheal tube had already been inserted in Sarojben's throat, she had difficulty in breathing. This witness confirms that the respondents administered injections to Sarojben and gave a massage. They also called Dr.Gedia and continued giving massage till Dr.Gedia arrived. 18. P.W.9 Rasikbhai Vithalbhai Patel, who has been examined at Exh.31 was working as a Compounder in the Hospital of respondent No.1 when the operation of the deceased took place. He states that he, alongwith P.W.8, were present in the operation theatre at the time of the operation. In his cross-examination, this witness states that after the operation was over, the respondent No.1 had directed that the patient (Sarojben) be shifted to the Ward when she CR.A/693/1997 19/31 JUDGMENT regained consciousness. This witness categorically states that the tube had been inserted in the mouth of Sarojben and when the respondent No.2 examined her and found that Sarojben having difficulty in breathing, he had at once started giving her massage and called the husband of the deceased as well as Dr.Gedia. 19. Another witness, whose testimony has considerable relevance, is P.W.10 Dr.Satishkumar Puranchand, who has been examined at Exh.33. He has performed the post mortem alongwith P.W.7 Dr.Gupta. The testimony of this witness is in conformity with that of P.W.7 in all material aspects. He identifies the hand-writing on the post mortem report and the reports at Exh.25 and 26 as being his own and states that in the post mortem report the opinion that Sarojben had died due to respiratory failure was the joint opinion of himself and his senior, Dr.Gupta. This witness was also subjected to lengthy cross- examination and his testimony has remained unshattered. In his cross-examination he states that the dead body of Sarojben was sent to them i.e. Dr.Gupta CR.A/693/1997 20/31 JUDGMENT and himself for expert opinion to find out whether there was any negligence by the respondents in performing the operation. This witness states that in the post mortem report and in the reports at Exhs.25 and 26 he and Dr.Gupta have written that no evidence of negligence had come to their notice during the performance of the operation. Further Dr.Satishkumar goes on to state that cardiac respiratory failure can occur due to many reasons and also due to vagal shock, which first affects the heart and is irreversible. He states that in medical science it is permissible to give four to five injections straight on the heart and over and above this, if one additional injection is given there is no adverse effect. He opines that if the heart has not gone into irreversible shock, then there is a possibility that it may restart after giving these injections. However, he states that vagal shock can occur due to many ordinary circumstances such as joy, sorrow or other ordinary reasons. This witness categorically states that on seeing the case papers of the patient (deceased) it can be seen that all efforts were undertaken to restart the heart of the patient and to continue the breathing. He further admits that due to insertion of endotracheal tube, the blood could not CR.A/693/1997 21/31 JUDGMENT collect in the trachea and if the endotracheal tube is removed after death, blood converts into liquid form within six to twelve