Karnataka High Court
State Of Karnataka vs Smt.Shilpa W/O Mahesha on 4 June, 2019
Bench: Ravi Malimath, H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 4TH DAY OF JUNE, 2019
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR. JUSTICE H.P.SANDESH
CRIMINAL APPEAL NO.409 OF 2013
BETWEEN:
STATE OF KARNATAKA,
BY MANDYA EAST POLICE ... APPELLANT
(BY SRI. I.S. PRAMOD CHANDRA,
STATE PUBLIC PROSECUTOR-2)
AND:
SMT. SHILPA
W/O MAHESHA
AGED ABOUT 20 YEARS
HOSADODDI GRAMA
MALAVALLI TALUK
MANDYA DISTRICT-571430 ...RESPONDENT
(BY SRI SRIDHAR C.K.,ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1) AND (3) OF CODE OF CRIMINAL PROCEEDURE
PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 31.10.2012
PASSED BY THE PRESIDING OFFICER, FAST TRACT
COURT-III, MANDYA IN S.C.NO.107/2008 ACQUITTING
THE RESPONDENT-ACCUSED FOR THE OFFENCES
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PUNISHABLE UNDER SECTIONS 315, 217 AND 304 OF
INDIAN PENAL CODE .
THIS CRIMINAL APPEAL COMING ON FOR HEARING
THIS DAY, H.P. SANDESH, J., DELIVERED THE
FOLLOWING:
JUDGMENT
This Criminal Appeal is filed by the State aggrieved by the judgment and order of acquittal passed in S.C.No.107/2008 dated 31.10.2012 on the file of the III Fast Track Court, Mandya for the offences punishable under Sections 315, 317 and 304 of Indian Penal Code.
2. The factual matrix of the case is that the accused being the daughter of P.W.11-Chikkanagaiah married to one Mahesha resident of Hosahalli was admitted to the District Hospital in Mandya on 12.12.2007 with the history of advance pregnancy. Due to some complications, she gave birth to premature baby in the hospital. Because of the underweight of the new born baby girl, baby was under incubator at the hospital. On 15.12.2007, the respondent herself got discharged along with the 3 premature baby against the medical advice. Thereafter, the accused has abandoned the baby girl near APMC, Mandya. The baby was rescued by P.W.10-Siddaraju who carried the said baby to the Government Hospital, Mandya and got admitted. Thereafter, the baby was readmitted to the New Born Intensive Care Unit ('NICU', for short) on 20.12.2007. The said baby died in the hospital. Death Memo-Ex.P.2 was forwarded to Mandya East Police Station. On the basis of the same, P.W.1-Ramalinge Gowda visited hospital and after obtaining opinions, he submitted his Report-Ex.P.1 to the inspector of police. On that basis, First Information Report was registered, investigation was conducted and charge sheet was filed against the respondent for the offences punishable under Sections 315, 317 and 304 of Indian Penal Code.
3. The Court below after securing the accused has framed the charges for the offences punishable under Sections 315, 317 and 304 of Indian Penal Code. The accused did not plead guilty and claims trial. The 4 prosecution in order to prove the guilt of the accused, examined twenty three witnesses as P.Ws.1 to 23, got marked documents as Ex.P.1 to P.23(a) and the defence got examined five witnesses as D.Ws.1 to 5.
4. The Court below after recording 313 statement of accused, considering both oral and documentary evidence of prosecution and also evidence of defence, acquitted the accused for the offences punishable under Sections 315, 317 and 304 of Indian Penal Code.
5. Being aggrieved by the judgment of acquittal, the present appeal is filed. The learned State Public Prosecutor, Sri. I.S.Pramod Chandra appearing for State in his arguments would contend that the very judgment of the acquittal is contrary to the law, oral and documentary evidence adduced in this case. Despite prosecution proved the case, learned trial judge did not appreciate the evidence of the prosecution witnesses and materials produced by the prosecution and erroneously come to the conclusion that prosecution has failed to prove the case 5 beyond reasonable doubt. Learned State Public Prosecutor would further contend that on 12.12.2007, the respondent got admitted to the hospital and she gave birth to a premature female child and she herself got discharged against the medical advice with the baby and abandoned the baby which was rescued by P.W.10. Despite giving treatment, the child died in the hospital on 21.12.2007. The evidence of P.Ws. 2, 3, 5, 6 and 8 who are all the medical officers and attendants in the District Government Hospital establishes the circumstances and their respective treatments rendered to the baby clearly establish the guilt of the accused. The Court below having failed in evaluating the evidence of witnesses, particularly evidence of P.W.4- Staff Nurse who speaks about the child birth and due to its ill-health and requirement of further exclusive treatment in the hospital. The respondent got discharged herself along with the baby against the medical advice and abandoned the baby. The Court below only looking to the over-writing on Ex.P.8 erroneously passed the impugned judgment of acquittal. The changes in the entries are required to be 6 believed in view of the re-admission of the child for the second time in the same hospital. P.Ws. 4 and 6 in their evidence have identified the same baby girl who was discharged on 15.12.2007. Ex.Ps.12 and 13 clearly disclose treatment given with regard to the baby and same has not been considered. Ex.Ps.23, 7 and 8 got to establish the guilt of the respondent who got discharged the baby against the medical advice. Hence, the impugned judgment and order of acquittal is liable to be reversed.
6. Having heard the arguments of learned State Public Prosecutor and considered the oral and documentary evidence, the question that arises for our consideration is:
"Whether the trial Judge has committed an error in acquitting the accused/respondent?"
7. The prosecution in order to prove the guilt of the accused mainly relied upon the evidence of P.Ws.2, 3, 5, 6 and 8 who are the medical officers and attendants in the District Government Hospital. To prove the fact that this respondent herself came and admitted to the hospital, 7 P.W.1-H.C.249 by name Ramalingegowda deposed in the examination in chief that he received death memo which reveals with regard to the details of the case of prosecution and got identified death memo as Ex.P.1. In the cross examination, he has admitted that he did not mention in the report as to whom he met and enquired, only he came to know about the name of this respondent after receiving death memo and he does not know about the treatment given to the said baby.
8. P.W.2-Dr.H.B.Manchegowda claims that he has seen the accused. On 12.12.2007 when he was on duty, a baby was delivered and its weight was very less and baby was referred to NICU. He further claims that he gave treatment to the baby but no document is produced. He does not know about the facts of the case and whether police enquired him. In the cross examination learned public prosecutor suggested him that the accused was admitted to the hospital for delivery, he denied the same and he does not know about the readmission of the baby 8 on 15.12.2007 but he claims that treatment was given to the very same baby from 15.12.2007 to 21.12.2007. In the cross examination by the defence counsel, he admits that there was a correction in Ex.P.4-case sheet and further admits that he gave the evidence based on the information given by his colleagues and he never went to the police station to give statement.
9. P.W.3-Dr.Sridhar has stated in his evidence that he can not identify the accused and he has spoken with regard to the treatment given to the baby. He is treated as hostile witness and cross examined. In the cross examination he stated that he did not make any statement before the police that mother of the baby got discharged with his consent.
10. P.W.4-Smt.Yashoda is the Staff Nurse. In her evidence she says that she has seen the accused on 13.12.2007 and the accused came to see the baby in NICU. She further claims that on 15.12.2007, the mother of the baby and grand mother of the baby came and 9 requested to discharge the baby girl. Despite she refused to discharge the baby girl, they took the baby by putting her signature. On the same day evening, some persons brought back the said baby to the hospital stating that the baby was abandoned near APMC and informed the same to Dr.Narendra Babu and started treatment. In Ex.P.4, she mentioned that baby was got discharged against the medical advice. In the cross examination, she admits that she read the statement papers in the Court hall and she further admits that she never told before the police that if a message is sent from the NICU, then only mother would come to NICU. She did not find her statement hence she read the statement papers but she has not given the statement before the police. Since the prosecutor put the question in this regard and she can not tell at what time she has seen the mother, since several people visit hospital and she has not having any identification mark to identify the accused and she does not know anything about the details of accused and her husband. She further admits that while discharging the baby, doctor has to 10 make an endorsement and she did not make any statement before the police in terms of Ex.P.4 stating that on the same day baby was sent to NICU.
11. P.W.5-Dr.Sarala Chandrashekar claims that she did not bring MLC register and also did not bring any document for having given treatment to the accused. Ex.P.8 was got marked through this witness. She further claims that on 16.12.2007, police brought the accused to the hospital and she stated that she only treated the accused for delivery and made the statement in terms of Ex.P.9. P.W.5 admits that she gave the evidence in terms of Ex.P.8 and she can not identify the mother of the baby. She further admits that there was a correction in the date of discharge of Ex.P.8 on the fifth page and she did not make such correction and she does not know who made the correction and police have not enquired and recorded her statement. Police have shown the papers and she read the papers and gave the evidence based on the said document which police have given to her.
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12. P.W.6-Smt. Jhanavi claims that she has seen the accused. In the cross examination she admits that she has assisted several doctors and she cannot tell to which doctors she has assisted. It is suggested that only based on the information gathered, she is deposing that she saw the accused and the said suggestion was denied.
13. P.W.7-Dr. Kavyashree G says that she has seen the accused when accused was brought to the hospital on 22.12.2007. She examined the accused and issued certificate in terms of Ex.P.7-wound certificate. In the cross examination, she admits that she did not get any records and while getting the records, she has to give requisition and further she admits that she neither got records related to I.P.No.22469 nor seen the same.
14. P.W.8-Dr. Narendra Babu, Child Specialist says that on 15.02.2007 a child was brought to NICU, when he examined the said child, it was suffering from breathing problem. He can not tell whether the baby was admitted earlier or not and does not know whether the information 12 was given to the police or not and the treatment was given to the baby as per Ex.P.10-memo. Police have not recorded any statement about this case. This witness has treated as hostile witness to the case of prosecution. In the cross examination, he admits that the baby died due to not providing the mother's milk and abandonment of child. The other witnesses have not supported the case of prosecution.
15. Let us reconsider the evidence available on record, though prosecution examined P.Ws.1 to 23, mainly relied upon the evidence of P.W.4 and other evidence of P.Ws.2, 3, 5, 7 and 8. P.W.4 who is the Staff Nurse says in her evidence that she has seen the accused on 13.12.2007 when accused came to see the baby in NICU. But in the cross examination, she categorically says that she has not given any statement to the police and police have given the statement when she came to Court and she read the same in the previous day in the Court and also she did not make any statement before the police that the mother of 13 the child came to see her baby in NICU. As such, the evidence of P.W.4 is clear that based on the alleged statement made by the police, she gave the evidence. In the cross examination, she admits that she does not have any identification mark to identify the accused and very identification of the accused has not been proved by the prosecution in order to come to the conclusion that accused herself went and admitted to the hospital. The prosecution did not produce any documentary proof with regard to the admission records, only produced the document with reference to the treating the baby and there is no any medical evidence before the Court to prove accused is a biological mother of the child and none of the witnesses have spoken with regard to this accused came to the hospital and delivered premature baby and there is no any evidence to prove the same.
16. Father of the accused is examined as P.W.11. In his evidence, he says that accused is already having baby through her husband and he does not know anything 14 about the facts of the case and further he says that she gave birth to a child in her house only. The doctors who have been examined before the Court have stated with regard to the treatment given to the baby. Further it is important to note that it is the claim of the prosecution that the baby was abandoned on 15.12.2007 near APMC, behind Nanda talkies and P.W.10 who found the baby, brought the same to the Government Hospital and further important to note that though the prosecution witnesses claim that baby belongs to the accused and even after readmitting the baby on 15.12.2007 till the death of baby on 21.02.2007 no effort has been made to secure the accused and no report was sent to the police, only after the death of the baby, death memo was sent to the police. In order to connect this accused that she is the biological mother of the baby, no materials produced before the court and also it is important to note that treatment was given in the Government Hospital, number of patients come to the hospital. The evidence of P.W.4 -Staff Nurse would not come to the aid of prosecution that accused is 15 the biological mother. Though, she claims that she saw the accused in the hospital but her evidence is inconsistent and the evidence of other doctors who have spoken only with regard to the treatment given to the child. P.W.3 in her evidence categorically says that she cannot identify the accused. Though P.W.2 claims that he can identify the accused, his evidence is also inconsistent but only he claims that the lady who having the name of Shilpla came to the hospital and admitted. This witness is also treated as hostile witness and cross examined by the prosecutor. As such, evidence of prosecution is also inconsistent. Though, many witnesses are examined hostile, there is no material evidence before the Court to connect this accused and defence of accused total denial that child does not belong to her and accused did not admit the hospital for delivery and admission record also not placed before the Court. Though the prosecution relies upon the document Ex.P.8 pertaining to the admission case sheet of the accused and there are correction regarding the date of 16 discharge. The evidence of prosecution does not inspire confidence of the Court to prove the guilt of the accused.
17. On consideration of the oral and documentary evidence of the prosecution, we do not find any material to connect the accused. Hence, we are of the opinion that we do not find any reasons to reverse the findings of the trial Court. The trial Judge has given sufficient reasons to acquit the accused and does not warrant interference by this Court. In the result, appeal is dismissed.
Sd/- Sd/-
JUDGE JUDGE
JS/-