Karnataka High Court
State Of Karnataka By Indiranagar ... vs Dr A V Sharma on 28 May, 2010
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 28'?" DAY OF MAY 2010
BEFORE
THE HON'BLE MRJUSTECE K.N.KESHAVANAFAYAl:§AA:"' A
CRIMINALAPPEAL No.305/2o07_'Tf-A} ' A
BETVVEEN
STATE OF KARNATAKA
BYINDIRANAGAR ::
POLICE STATION.
{BY SR1.B.RAJASUBRAMANTA
AND:
DR.A.V.SFIAFflVLA., A A
S/O LATE PTTA;S.SHAR;MA;T«..t "
AGED ABoL§"T.5'1 .
RESIDING AT N"Q,1;~* "
APARTME1§:TNo.52,
.40TH C'RO=SS,"T'8TH BLOCK,
BA1-\I.C»ALQvRE,_" RESPONDENT
A {BY SE1.AMARESH.A.ANGAD1, ADV) '~'STA'?E 33.9. FOR THE STATE PRAYING THAT THIS " C_RI;.'A.:' FILED. U/S. 378(1) 3: (3) Cr.P.C BY THE
-'i 2 HON'BI..E COURT MAY BE PLEASED TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGEMENT DT.8. 12.06 PASSED BY THE X ACMIVE, ETLORE CITY, IN C.C.NO.22552/97--ACQUI'I'I'ING THE RESPONDENT:/"»a. ACCUSED FOR THE OFFEN-CE P/U/S.304--A OF K CRIMINAL APPEAL COMING ON FOR H--iEiAre.:'1$:eg' I 4_ THIS DAY, THE COURT MADE THE I?O.LI,O\R;"'1'NG*:i:'_';V. I I JUDGME.'§§j-_.F___ In this appeal filed vnder '~3.78['}]'and..{§) of Cr.P.C. the State has .':tI*I¢.V::1»¢agaIity and correctneéés of 'a-nd"0rder dated 842-2006 passed by Chief Metropolitan vV'..1\/£agist1'a_t.e,_IA' Bahg'a1Q1je___,C1'ty in C.C.No.22552/I997 Va~:;qu«itting-A._v4'th-ah"Resp0ndent--Accusec1 of the charge 1eveIie§i'VIagaiIi'$thim for the offence punishable under , , .§}eeti0rI" 3.02;-t_A' af 1pc.
2. The ease of the Prosecution is as under:
One Anantharaju the younger brother Narasirnharaj was admitted to ChinnmayaI'Mission 9 Hospital, Indiranagar, Bangalore on Piles complaint. C.W.16 Dr.RamasWarny whodivgavs the Consultant Surgeon in the flgafter examining the said to undergo surgery, for wh.ieh,:. and requested as early as possible, severe pain.
Therefore;__Aope--rati'on».ii\?a.s"«ti,§{ed-on 19-2-1992. On that day, the liAnanth'ra3?u..,,94\2iras taken to Operation _f1.'heate.r.§:g:9aut'about" am. The responclent--accused ._Sl3..aI'm--aWvJho was working as Anesthetist in the V sai'.cl'--gVAl';os}VV)'itAa},.. aclrninistered anesthesia and C.W.l6 {)r.Rarria.s\?lzanV1g/, conducted surgery on the said However, Anantharaju breathed his last on the operation table. The said fact was informed to the relatives of the deceased who were waiting outsider the operation theatre. However, P.W.1 and;~«~~--otij~.er".j' relatives of the deceased started protestingsfize 1 ground that the death was due to the Doctors. 'Ultimately, P.W.1 ar1d.___othe'rstookagthe 3 body and cremated the same.
lodged a complaint with liaspector lndiranagar, Bangalore as per Ex.P.1 alleging the part of the respond_ent 1jgS"'I;)ur§'R3aInaswamy as the cause for brother Anantharaju.
Based on thesaid"eofnplaintilthe Police registered the 'case in._§CCrime Ntoieéi/1992 for the offence punishable 7u_nd.e1*.. of IPC against the Respondent V hereinand "l:3'r_.ll{jarnaswamy and submitted FER to the Jurisdictionalill/Iagistrate and took up investigation. It
3. During the course of investigation. the_ investigating Officer collected necessary documen~ts'<4'an__d".j' "
opinion of the forensic expert, which revea1ed.th!at.dea"th it was due to negligence on the part of administering anesthesia to th'e.4__.decea_sled. it the Police filed the charge sheetlagiaixist for the offence punishable"::--1nC-tieriSee.tjsfj»:3iO4--l'ii IPC alleging medical A.negligence::V. of the Respondent.
4. The:'l"'RespondVe:nt' hupon l'._s'e"ryice of summons appeared Before the'le_a1fned"'Magistrate and pleaded not guilty of the chalfges.s1eve»lle'd.lagainst him and claimed to iID.uI*ing the""t'i'ial, the Prosecution in order to of the accused, examined P.Ws.1 to *6 and-got Ex.P.1 to EX.P.5. The Respondent» ""l.-:i,"V'ac'cupsed not choose to lead any defence evidence. H_is--.. defence was that there was no negligence on his part and that the deceased died on account of cardiac arrest. Therefore, he has not committed the offence for which, he has been charged.
5. Learned Magistrate after hearing both and on assessment of the oral"Mals'«well documentary evidence, by theg_iuclgmer1't._ under Aappea:"El"' held that the Prosecution has faieiliecl to prov'e«"'thavt the deceased Anantharaju died. on negligence on the part of the RespondentV_ln._adrntniste'rii1g'anesthesia at the tinyledmoi' t£:.e:refore';""the prosecution has failed to prove. the accused for the charges levelled Agagainlst' ':beyoVn"dl all reasonable doubt. In ofv.th'eo.gmatter;"'the learned Magistrate acquitted the..a(.;cuse:cl»--..c_g " V' " AA Beinglaggrieved by the said judgment and order of the State has presented this appeal.
7. Upon service of notice of this appeal. Respondent has appeared through his counsel. V
8. I have heard both sides and perused the reelordsl; '5 H
9. Learned High Court Government' = «Fleéidflrpr contended that the judgment of the1_1earn.edl't1\/llagistrate_p it is perverse and contrary to the"eVidence~ on record; 'as much as. the learned MagistrateV_ has not properly appreciated the evidence on', riecord;"i in its proper perspectifie, t.here'fe.rer.4l"itglisjlii-a'Lil.e to be set aside. It is his further 'submission the evidence on record. 'broth and docurnentary would clearly establish that the deceased d,ied__on account of negligence on the part of the .Respon_d.en=t?accused in administering anesthesia, therefore, 'learned Magistrate is not justified in the accused. as such the judgment under 5"
«g«/ appeal is liable to be set aside and this court reappreciating the entire evidence has to convi«c.ty'_»thcf accused for the charge levelled against him.
10. On the other hand. the learned co.ugn}s3elccappearing for the Respondenbaccusedfs.ought._to 'the . judgment passed by the court beloivland that the learned Magistrate that the Prosecution has failed toA"--proveV'-the on the part of the _the Prosecution has not placed any to show the exact cause of death. 'l'her'efo1'e_, thhel' under appeal does not suffer or illegality as such, there is ln.orn'er_Vit i_n'the:ap_peal. It is further contended that this corn"-tnsittilngéign Vpapvpeal cannot lightly interfere with the g judgment acquittal passed by the court below unless that the judgment under appeal is perverse,
-4 illegal and contrary to the evidence on record or that the court below has omitted to consider any material evidence. It is his submission that there is perversity in the judgment of the court be1ow"A.'no:'jt;he"t learned Magistrate has omitted to cc»'nsiderp_ a.ny.:rnate_riai:'«' evidence on record. According to the :iearnedv_*v_counse1V ' for the Respondent, the learned iMagistrate.hasdproperly appreciated the evidence':'in_ its"Vlproperjperspecvtive and has come to the correct concdiusidon fthat'the»d__ifi-osecution has failed to priovepuithe;i_guilt': of aacizcused beyond reasonabfe d0uhVt;'*"i;h.e4refpor.e;'the -'court below is justified in acquittingthe Responcient--accused. :p'I.npthie'A«1ight.of the above. the points that arise for consideratiorfiin'this appeal are -- 'A (i) it v.V_Whether the court below is justified in acquitting the accused? and 10
(ii) Whether the judgment under appeal calis for interference by' this Court?
12. The undisputed facts are that the Anantharaju was admitted to Chinnmaya 1 18--2-- 1992 with Piles complaint andlon seen by C.W.16 Dr.Rarr1aswari'1y'__. and .__advise,ci 9' undergo surgery. According1y,V'v9's»u;rgery on 192- 1992 and on that a.m.. he was taken to the Operation Respondent-
accused :¥__ad;niniste.redpflaraesthesia and C.W.16-- Dr.Ramaswa'1n4_yticon*du'ctedi'surgery. However. the said 'Anantbiaraju diedldonpi the operation table itself. dA_cco:rd.hospita1 authorities. death was due to _ V cardiac-..arresCt_"p:soon after the surgery and in spite of the best efforts Inade by the Doctors present there, the 'wtV"p'a:tierit=..ycou1d not be revived and he died. It is an 233/ admitted fact that the dead body was not subjected Post Mortem Examination. Therefore. the exact...«~c.'aAul:s'ef for the death was not ascertained. T Professionals examined in this case as>_P.Ws,T f Chorus have stated that exact canse florvhlthe dea'tix;:.. be ascertained only by Post ilfhere is some controversy as not subjected to Post I,
13. Post Mortem examination in Chinnmaya Hospital itself. However, that the Doctors at
4._Chinnm%aya'.Hospita,l:told him that there are no proper A'fa_cil.i:tiesV 'A«thel"~-Hospital for conducting Post Mortem examination 'o£.t1:e dead body concerning a rnedico legal Case and..hleV was asked to take the dead body to either
-.l iv:¢:¢ria_H¢spi:a1 or Bowring Hospital for Post Mortem
-*2 {V examination. Be that as it may, the fact remains that the dead body was not subjected to Post examination. Therefore, the exact cause for not forthcoming. Though the death' 1992 and P.W.1 being the brother of deeeafse.d:'jivas very much present in the m{hen"the'f':DoVetors informed him about theisideaith the operation. table itself, not taken immediate to the Police.
instead, as per Ex.P.1 oniy on Magistrate noticing that there is abso1autev1yf"'noAiextitanation whatsoever for the
4._inordin2ite 'delaynf fnegarly 30 days in lodging the A'comp1a.int.,:i1aa:op_ined that the case of the prosecution V in be Viewed vsdth suspicion. I find no reason to differ from the said opinion of the learned 1'?
= if §'¢_1'§ii:s'ti1'2..l«'Ee "
14. The evidence of P.W.2 is of no assistance to the prosecution in proving the negligence on the part of Respondent~accused. This witness has about the fact that the deceased Ananthraju_--'died: it 2 Hospital, and subsequently a complaint;'_"wa's thereafter in his presence P.W.3 is Dr.Krishna BhargavalVwhogis Director of the hospital. he does not know the reasons_ forgthie He has stated that looking into records th__at._ -'deceased was due to Cardiac Arrest. l;.Tir1gIiavakarnu is the Professor Fore;1}isici'~Scienceliin Bangalore Medical College. He has given opinion as per Ex.P.4 based on the Case V file Chinnmaya Mission Hospital. He \:.;rgs of 4th.e°'Vopinion that death could have occurred due Cardiac failure precipitated by Anesthetic complications consequent to preexisting cardiac disease. It is reported in Ex.P.4 that the deceased..«was._:"'--_' suffering from cardiac disease and he died on ac-countoif ' cardiac faiiure. However, this witness" is of -'_the4"o;§inior1j;. that cardiac failure is precipitated complications. However, he dienfinitely".g,a§,ethat the death was solely onr'account nvegfiiigenceii the part of the Respondent§accnvseVd .A'_';..':1v1C'i::_*__r:1inisterir1g Anesthesia. the dead body ought to Post Mortem examination to aseertainithfe-ea--r_1se for the death. In the absence of the exact the death, the opinion
4..ft1rnishi«t%:d'Vb3,r p.W; per Ex.P.4 cannot be a soie basis to »A Respondent was negiigent in administeriIrg--._ anesthesia. Therefore. the Eearned
1.':/Iagistrate"'v.hasi rightiy refused to place reliance on the of P.W.4 and on Ex.P.4. P.W.5 Dr.Benakappa M and P.W.6 Chikkananjappa, are Vice President and President of Karnataka Medical Council respectivel3?44'an_Llf "
they have spoken only about the enquiry d it the Respondent in the Medical Council ' lodged by P.W.l. Of course,_>th_eir evidenceevindicates that after the enquiry. the the conclusion that there of the Respondent. Therefore, his license to praCt.i(§?:eA 'was imposed. However, l\lIedical Council is not binding it cannot be a basis to find the accusped gu'ilt§Ain Prosecution. Despite __.such an'dV._,report of the Medical Council, the A"P_rcsecution=.Was--.under an obligation to prove beyond V reasonable guilt of the Respondent--accused.
"1'.herefo're,l"'the learned Magistrate has rightly not placed irell'i.anc'e on the evidence of P.W.5 and P.W.6. There 16 is no other evidence upon which, the prosecution has placed reliance to bring home the guilt of the accu.se4d:§V"' 3
15. Perusal of the judgement under appeal indicat-es 'V' ' that the learned Magistrate has pI'Q§}€.I',1_Y ev-aluatefd'V'the..V evidence on record in its proper p'ersp_ective~.an_d rightly come to the conclusiolnrthat the on record do not satisfactorily estabu1.i'sh"'-the 'guilt. of the accused in as much as the te$§v*as"'negligent in administering anesthesiagg'VVlt:isV::an:Vad:nittedvV'fact that the Respondent is at'tgsialéifiedw.specialist in Anesthesia and he has a long experie'ncel::'i'ri4that field. The deceased had pr,e':é:(ious history' of Cardiac disease. In the absence actual .cause"~-of death of the decease, the cause as V stateriioy authorities that the death of the cleceasedz xitzasdldue to cardiac arrest has been rightly the court; below. It is not forthcoming from g the records that the anesthesia administered to the deceased by the Respondent was either improper or excessive. The Surgeon who conducted the operatio:n«.Vg"".,A has not been examined before the Court thoughfiie cited as a witness in the charge sheet.""'
16. Having regard to the facts and .' the case and the evidence available Vonllrecordl; opinion. the learned Magistrate__4_is-justifiedholding that the prosecution has "failepd'f--.to%{_pro've~ guilt of the Responde'nt--aeci.ifs"ed.._:4"w _ learned Magistrate has "rightly placed:reliai1ce.Vp'o»n:""the decision of the Hon'ble '._SupremefCourt V're.pVorte'c} in AIR 2005 so 3180 with regard. to ifngreédients to be proved by the prosecution in V case the Medical Professionals.
E8
17. In this view of the matter, I do not see any perversity in the judgment of the court below and the learned Magistrate has not omitted to c0nsider.«ja..in_'y_:"'--vV' material evidence on record. The appreciation0f_t'i1:e'* ' evidence by the learned Magistratevis' accordance with the well'-»sett1ed Rof Vifherefore, there are no ground_s""~tQ invterfere judgment of the court be1'0§.§r. Accordingly. the appeal is dismissed.