CRA No.542-SB of 2002 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.542-SB of 2002 Date of Decision: July 23, 2010 Gurnaib Singh .......Appellant Versus State of U.T. .......Respondent CORAM:- HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Dr. Deipa Singh, Advocate/Amicus Curiae, for the appellant. Mr. Rajiv Sharma, Advocate, for U.T. Chandigarh. **** JITENDRA CHAUHAN, J. 1. The present criminal appeal has been preferred by the appellant, namely, Gurnaib Singh, challenging the judgment and order dated 7.3.2002, passed by Additional Sessions Judge, Chandigarh (hereinafter as 'trial Court') convicting the accused (herein appellant) for committing offence under Section 15(3) of the Indian Medical Council Act, 1956 (in short 'the Act'), and sentencing him to undergo rigorous imprisonment for a period of nine months. 2. The prosecution story, in brief, is that on 28.5.1998, one Geeta Devi w/o Ram Sunder, resident of Jhuggi No.636, Labour Colony, Sector 31, Chandigarh, made her statement to the police whereupon FIR No.56 dated 28.5.1999 under Section 304A, 467, 468, 471 IPC was registered at Police Station, Sector 31, Chandigarh. It was stated in her statement that she resided at the above address with her family. Her daughter, named, CRA No.542-SB of 2002 -2- Shakuntla, aged 16 years had been suffering from fever for the last one month and could not regain health from her ailment. On 25.5.1998 at about 5.00 pm, she took her daughter-Shakuntla to Dr. Gurnaib Singh-accused at Labour Colony, Sector 31, Chandigarh and he gave injection and tablets to her. He also gave tablets to her on 26.5.1998. On 27.5.1998 at about 5.30 pm, the accused again gave an injection and tablets to Shakuntla and thereafter, she was taken to home by Geeta Devi-complainant. The condition of Shakuntla deteriorated on the way to home so she (Shakuntla) was made to sit on one side of the road by the complainant who then went to the accused to inform him about her deteriorating health condition. The accused-appellant asked the complainant to take her daughter back at home but her daughter's condition further deteriorated at home. Thereafter, the sister-in-law of the complainant-Dev Rani brought the accused at home who gave an injection to Shakuntla but the condition of Shakuntla further deteriorated. She was then taken to Government Medical College and Hospital, Sector 32, Chandigarh, for treatment where she died at 12.50 A.M. (during night). It was further alleged that the accused was a quack and he has caused the death of Shakuntla by administering her injection and tablets, due to his negligence. 3. The investigation of the case was commenced by SI-Bhajan Singh, who went to the spot and took the medicines into possession from the possession of the accused vide recovery memo dated 28.5.1998. He also took into possession Licence No.101653 dated 14.7.1992 issued by the Bihar State Ayurvedic and Yunani Medicine Council, Bihar, along with receipt No.19812 dated 26.6.1992, vide separte recovery memo. He also took into possession the Sign Board of Vaidwan Davakhana Vaid G S CRA No.542-SB of 2002 -3- Vaidwan, RMP and identity letter No.CH/01/000/284/0849513 of Electoral Registration Officer, Chandigarh vide separate recovery memo(es). Rough site-plan of the place of occurrence was also prepared by him. On his application made to the Director, Health Services, one Drug Inspector, named Jasbir Singh, was deputed who took samples of enteromycetin injection and nandralone phenyl, under the rules, which were kept under seal having impression 'JS' and the same were subsequently sent to the Laboratory, Sector 11, Chandigarh, for their analysis. He also visited the clinic of the accused located in Labour Colony, Sector 31, Chandigarh and took samples of Diclox and Oxydeteracyline injections under the rules, by sealing them at the spot. The certificates of the accused issued by Bihar State Ayurvedic and Yunani Medicine Council, Bihar, Patna were also taken into police possession. Allopathic medicines were taken into police possession, their samples were sent to the Laboratory, Sector 11, Chandigarh. The signatures of the accused were obtained on the requisite documents. Photographs of the medical shop of accused were also got prepared on the spot by the I.O. through a photographer and medical report was obtained from Dr.Mandeep Singh, Medical Officer, during the course of investigation. SI Bhajan Singh further prepared inquest report on the dead body of Shakuntla and got the post morten examination done on the dead body of the deceased to ascertain the real cause of her death. Reports of the Department of Pathology, Government Medical College and Hospital, Sector 32, Chandigarh, and the Chemical Examiner regarding analysis of the sealed parcels, the reports of Government Analyst, Punjab and Chandigarh regarding examination of the samples of drugs were also taken into possession by the I.O. On completion of the investigation, the challan CRA No.542-SB of 2002 -4- was presented against the accused in the Court of Illaqa Magistrate, Chandigarh, who committed the case to the learned Court of Sessions, Chandigarh. Charges under Section 304 IPC, were framed against the accused to which, he pleaded not guilty and claimed trial. 4. In order to substantiate the charges against the accused, the prosecution examined as many as 13 witnesses viz. PW1-Jai Balak Parshad (Registrar); PW2-Randeep Kumar Sharma; PW3-Geeta Devi (complainant); PW4-Dr. Gurdeep Singh (Drug Inspector); PW5-Dr. Irwirjit Singh; PW6- C.Anil Kumar; PW7-Dr. Mandeep Singh; PW8-Jasbir Singh, Drug Inspector; PW9-C.Manjit Singh; PW10-Amolak Ram; PW11-Subhash Chander, Sub Inspector; PW12-M.L. Verma and PW13-Inspector Gurdial Singh. 5. In the statement under Section 313 Cr.P.C., the accused denied all the allegations of the prosecution case and pleaded false implication in the case. In defence, DW1-Dr. Irwinjit Singh was examined. The learned trial Court, after hearing both the parties, convicted the accused-appellant under Sections 15(3) of Act and sentenced him for the term as indicated in para 1 of this judgment, vide judgment and order dated 7.03.2002, which is under challenge in present criminal appeal. 6. The sole ground for assailing the judgment of the learned trial Court in the present appeal is that the appellant was never charged under Section 15(3) of the Act and hence, he could not be convicted for this section, especially, when he stands acquitted by the learned trial Court for charges under Sections 304(A)/467/468/471/IPC. 7. The act of omission to charge an accused under a specific section has been dealt with by the Hon'ble Supreme Court in Dinesh Seth V. State CRA No.542-SB of 2002 -5- of N.C.T. of Delhi, reported as 2008 (4) RCR (Criminal) 81. The relevant portion of the said judgment is reproduced as under:- “12. In view of the apparently conflicting judgments of the coordinate Benches, the issue was referred to a larger Bench. In Dalbir Singh v. State of U.P., 2004 (2) RCR (Criminal) 497 : 2004(2) Apex Criminal 633 : [2004(5) SCC 334], a three Judges' Bench considered the provisions of Section 222 and 464 of the Code and observed: “ Sub-section (1) of Section 222 lays down that when a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. Sub-section (2) of the same section lays down that when a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. Section 222 CrPC is in the nature of a general provision which empowers the court to convict for a minor offence even though charge has been framed for a major offence. Illustrations (a) and (b) to the said section also make the position clear. However, there is a separate chapter in the Code of Criminal Procedure, namely, Chapter XXXV which deals with irregular proceedings and their effect. This chapter enumerates various kinds of CRA No.542-SB of 2002 -6- irregularities which have the effect of either vitiating or not vitiating the proceedings. Section 464 of the Code deals with the effect of omission to frame, or absence of, or error in, charge. Sub-section (1) of this section provides that no finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. This clearly shows that any error, omission or irregularity in the charge including any misjoinder of charges shall not result ill invalidating the conviction or order of a competent court unless the appellate or revisional court comes to the conclusion that a failure of justice has in fact been occasioned thereby.” 8. Similarly, in the case of Dalbir Singh V. State of UP, the Hon'ble Supreme Court has held that any error, omission or irregularity in the charge including any misjoinder of charges shall not result in invalidity of conviction or order of a competent Court unless the appellate or revisional Court comes to the conclusion that failure of justice has in fact been occasioned thereby. The Hon'ble Supreme Court has examined the effect of Section 464 Cr.P.C. on a proceeding where an accused has been convicted of an offence under which he was not charged. 9. In view of the aforementioned observations of Hon'ble the CRA No.542-SB of 2002 -7- Supreme Court, the only aspect that needs to be examined is whether in the present case, the conviction of the appellant-accused under a Section for which charge was not framed has resulted into failure of justice. 10. Admittedly, the appellant was practising in Allopathy system of medicine. It is clear from the report of Drug Inspector, who collected samples of Allopathic medicines from the clinic of the appellant and sent the same for chemical examination that the medicines being used by the appellant were of standard quality, hence, in the opinion of the Court, the appellant could not be convicted under Section 304(2) IPC, especially when DW1-Irwirjit Singh, who appeared as PW5 also, has deposed that Shakuntala, died due to respiratory disease, i.e., Pulmonary Tuberculosis. In order to substantiate whether the appellant was having a valid Medical Licence, PW1- Jai Balak Prasad, Registrar, Bihar State Ayurvedic and Yunani Medicine Council, Bihar, was produced and examined by the prosecution and from his PW1, it is proved that the licence (Ex.P1) was indeed issued by the above Medicine Council. However, this licence (Ex.P1) does not authorise its holder to practise in Allopathic system of medicine. Most important fact is, Ex.P1, is carrying the name of one Gurbax Singh and not that of the appellant. PW1 was not cross-examined on this point even though a specific opportunity was given to do so. Thus, in the initial stage of the trial, it became very much clear to the accused that evidence had come against him to the effect that he did not possess any valid licence to practise in allopathic system of medicine. Despite that, he produced only DW1-Dr. Irwirjit Singh in his defence, who, as already mentioned above, deposed that death of Shakuntala occurred due to respiratory disease. CRA No.542-SB of 2002 -8- 11. In view of the above, it is clear that the appellant never tendered any medical evidence in his defence so as to establish that he, in fact, had the requisite medical licence to practise in Allopathy system of medicine. As is already been mentioned herein above, samples of Allopathic medicine were taken from the clinic of appellant-accused in his presence and the same fact stands admitted by the appellant in his statement under Section 313 Cr.P.C. 12. Thus, at no point of time, the appellant denied the fact of his practising in Allopathic system of medicine. Besides that, he did never produce any evidence in order to support his credentials as an Allopathic medicine practitioner. 13. In view of the foregoing discussions, it cannot be held that failure of justice has been met by convicting the appellant under Section 15(3) of the Act, even though he was not specifically charged under it. 14. In the circumstances, the present appeal stands dismissed. The judgment and order dated 7.03.2010 passed by the learned trial Court is hereby maintained. The appellant is stated to be on bail. He be taken into custody forthwith to suffer the remaining part of the sentence awarded to him by the learned trial Court. ( JITENDRA CHAUHAN ) July 23, 2010 JUDGE atulsethi Note: Whether to be referred to reporter ? Yes/No