HON’BLE SRI JUSTICE SAMUDRALA GOVINDA RAJULU CRIMINAL PETITION NO.7498 OF 2007 DATE:23.10.2009 Between: Dr. Vasireddy Vijaya Kumar and another …… Petitioners/A-1 & A-2 And: State of A.P., rep. By Public Prosecutor, High Court of A.P and another. …..Respondents. HON’BLE SRI JUSTICE SAMUDRALA GOVINDA RAJULU CRIMINAL PETITION NO.7498 OF 2007 ORDER: Petitioners 1 and 2/Accused 1 and 2 filed this petition under Section 482 of the Code of Criminal Procedure for quashing C.C.No.952 of 2005 of the Court of the I Additional Judicial Magistrate of the First Class, Khammam, which is a case relating to the offence under Section 304-A of the Indian Penal Code. Accused 1 and 2 are medical practitioners at Khammam running Ramakrishna Nursing Home. The victim/the deceased by name U. Sandhya joined in Ramakrishna Nursing Home of Accused 1 and 2 on 16.04.2004 complaining abdominal pain. After examining the victim, accused 1 and 2 found that the victim was suffering from ulcer in uterus and had to undergo surgery. On the same day, accused 1 and 2 did surgical operation on the victim for hysterectomy. After half an hour of the surgery, there was severe bleeding from her vagina. Again the victim was taken into operation theatre for further treatment. It is alleged that accused 1 and 2 did not respond immediately to stop bleeding and neglected the victim. It is further alleged that accused 2 informed husband of the victim who is the defacto- complainant that at the time of operation they have cut two vessels and after completing the operation, they have tutored one vessel and the second vessel was closed with stickers due to which there was bleeding. Subsequently on 19.04.2004 as the victim’s condition was serious, accused 1 and 2 advised the victims husband to shift the victim to another hospital. Thereupon the victim was shifted by her husband to Kinnera Bollineni Hospital. While undergoing treatment in Kinnera Bollineni Hospital, the victim died on 25.04.2004. Alleging that accused 1 and 2 conducted the surgical operation in negligent manner resulting in death of the victim, I Town Police Station, Khammam filed charge sheet against accused 1 and 2 for the offence under Section 304-A of the Indian Penal Code in Crime No.62 of 2004, after investigation. The police filed charge sheet after examining the victim’s husband and relations. During investigation, post-mortem examination was conducted on dead body of the victim by two Civil Assistant Surgeons of District Headquarter Hospital, Khammam. The doctors gave post-mortem certificate and final opinion opining that no definite opinion of cause of death can be given, but however, the death due to hemorrhagic shock cannot be ruled out. Subsequently the investigating officer i.e., Sub Inspector of Police, Khammam Town Police Station addressed a letter to one of the Post-mortem doctors by name Dr. B.Venugopal with a questionnaire as to why definite opinion cannot be given relating to death of the victim and whether the death was due to post-hysterectomy Vaginal bleeding due to not applying stutters to one of the vessels cut at the time of operation. The doctor gave reply to the effect that definite cause of death would not be given basing on P.M.E findings and that the 2nd question will not arise in view of mention in P.M.E report in the column of uterus, as vessels are legated on both sides of the uterus. The post-mortem report states that uterus was absent and that on both sides legators are present and there was no bleeding. It was further noted therein vault healthy peritinization done. It shows that uterus was absent because hysterectomy surgery was done on the victim. Since the surgery was recent in nature legators were found on both sides. By the time of her death, the victim had no bleeding from any vessel inside vagina. These are the observations of the doctors who conducted post-mortem examination on the victim. From the post-mortem report, final opinion given by the doctor and answers to the questionnaire of the investigating officer given by the doctor, nothing was made out that bleeding from vagina of the victim immediately after surgical operation conducted by the accused was due to non application of stutters but only application of stickers to one of the cut bleed vessels inside. The doctors who conducted the post-mortem examination did not find any stickers, but found only legators. Be that as it may, sheet anchor of the petitioners contention is based on decision of the Supreme Court in Jacob Mathew Vs. State of Punjab and another (2005 Supreme Court Cases (Cri) 1369. It is contended by the counsel for the petitioners that the Investigating Officer did not collect any independent opinion of another Medical Practitioner of the same speciality as that of accused 1 and 2 in order to prove the medical negligence in this case. It is astonishing to note that even though in First Information Report itself, the defacto-complainant stated that the victim took treatment from Kinnera Bollineni Hospital from 19.04.2004 to 25.04.2004 upto her death, the investigating officer did not examine any doctors from Kinnera Bollineni Hospital in order to find out the nature of treatment given to the victim by the said hospital and diagnosis and findings of the doctors relating to the victims complaint. In the above reported judgment, the Supreme Court while dealing with a case of medical negligence observed and laid guidelines as follows:- “52. Statutory rules or executive instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in Government service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying the Bolam test to the facts collected in the investigation.” In the case on hand, the investigating officer did not obtain any independent medical opinion from the competent doctor much less a doctor in Government service qualified in the branch of medical practice. In the absence of any such medical opinion placed before the Court, it cannot be said whether such opinion is impartial or unbiased. Infact not only there is no medical opinion as contemplated in “JACOB MATHEW” but also there is no medical opinion at all throwing any light on the alleged rashness or negligence of accused 1 and 2 in conducting the surgical operation of hysterectomy on the victim of woman and in its operative care. Thus bottom of the prosecution is knocked of in this case. I find that investigation of the case is totally poor and material collected during investigation and placed before the Magistrate do not prima facie established a case of medical negligence as contemplated by law. In the result, the Criminal Petition is allowed quashing the proceedings in C.C.No.952 of 2005 of the I Additional Judicial Magistrate of the First Class, Khammam. ___________________________________ SAMUDRALA GOVINDA RAJULU,J Date: 23.10.2009. Gk. HON’BLE SRI JUSTICE SAMUDRALA GOVINDA RAJULU CRIMINAL PETITION NO.7498 OF 2007 DATE:23.10.2009 Gk.