Bangalore District Court
Dr. L.T. Jayamma vs State Of Karnataka on 31 December, 2020
1
Crl.Apl.No.1187/2017
IN THE COURT OF LXIX ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE (CCH 70)
Present: Sri. Gururaj Somakkalavar, M.A.,LL.B.,
LXIX Additional City Civil and
Sessions Judge, Bengaluru.
Dated this the 31st day of December, 2020
Crl.Appeal No.1187/2017
Appellant : Dr. L.T. Jayamma
W/o Late Dr. Honnabhavi,
Aged about 67 years,
R/o No.763, 8th Main,
Mahalakshmi Layout,
Bengaluru.
[By Sri. Nijalingappa, Advocate]
V/s
Respondent : State of Karnataka
By Mahalakshmi Police Station
Bangalore.
(By Public Prosecutor)
: JUDGMENT:
Appellant/accused has assailed the legality and correctness of her conviction for the offence punishable U/Secs. 338 of IPC and her sentence to undergo SI for 15 days and to pay fine of Rs.1,000/- and further accused is also ordered to pay compensation of Rs.5,000/- to C.W.1, through judgment dated 20.07.2017 in C.C.No.16295/2008, on the file of VII ACMM, Bengaluru City.
2Crl.Apl.No.1187/2017 The parties are referred to their original ranks.
2. Essential material facts lead to this appeal succinctly is as follow:-
Respondent/complainant police registered criminal case against accused for the offence punishable u/secs. 338 of IPC. It is the case of the prosecution that, accused person is having a Hospital by name Ganga Maternity Home and in the year 2007 C.W.1 was hospitalized for labour pain and on 17.08.2007 she was operated by way of caesarian section and a baby boy was delivered by C.W.1 and later on C.W.1 is said to have suffered with server stomach pain. Therefore, she had been to the very said hospital and this accused person stated that, it is usual to occur after a caesarian section and later on since she sufferred a pain in the abdomen, she went to another hospital i.e. Ramamani Nursing Home wherein a scanning was advised and thereafter she was operated and found that accused person while conducting a caesarian section operation had left a napkin, cotton bale which had caused pilferation and as such she was operated and it was due to the neglect act of the accused person. The Trial Court after full pledged trial has passed the impugned judgment and convicted the accused in the above manner through impugned order of sentence.
3. Feeling and aggrieved and dissatisfied with the above nature of verdict of court below, accused has preferred instant appeal. Accused in herappeal memo specifically contended that, the learned magistrate has convicted the appellant based on only presumption and submitted and conjectures which are not relevant 3 Crl.Apl.No.1187/2017 to the circumstances of the case when the C.T. Scan report does not disclose the foreign body (MOP) in the cavity and further that, the alleged MOP is not subjected to practical test and no histopathology was done regarding the material removed from the body of the complaint which will creates a doubt about the theory of MOP being found in the cavity. The doctor who is allleged to have performed the said operation to remove the alleged foreign body from the abdomen of the complainant namely Dr. Bajantri has not been examined which clearly goes to show that Dr.Padmini Prasad (PW.2) is behind this complaint in order to malign the image of the appellant/accused. The allegation that the complainant intestine was filled with faecal matter cannot be believed, at all since the complainant would not have been in normal condition for one month after cesarean section operation and if it was true that faecal mater was leaking into the abdominal cavity after the removal of the alleged MOP the complainant would been in septic shock, whereas in this case, it was not so except the baised statement of the PW.2. The doctor who is alleged to have performed the operation on the complainant namely Dr.Babu Bajantri is who was an orthopedic Surgeon and might have caused injury to the abdominal cavity and botched upon the operation and to cover up their mistake have put the blame on appellant/accuse. The learned Magistrate failed to see that, there is an unexplained delay of 80 days i.e. the last date of discharge being 09.10.2007 and lodging of the complaint being on 28.12.2007 in filling the FIR and which is considered to be fatal to the prosecution case. The learned magistrate has failed to note down the contradictory testimonies of PW.1 and 2 and has failed to consider the judgment 4 Crl.Apl.No.1187/2017 rendered by the District Consumer Disputes Redressal Forum, Bengaluru urban in comnplaint no.2579/2008, which has been produced by the appellant in her defence. Wherein it has been categorically held that there is no negligence whatsoever on the part of the appellant while performing the caesarean section operatiion on PW.1 the complainant. The learned Magistrate has proceeded to convict the appellant merely on the basis of improbable evidence of the PW.2 which is improbable and unnatural due to professional rivalry with the appellant. The learned Magistrate failed to see that PW.1 to PW.4 are stock witnesses of the complainant. With these amongst other grounds the appellant prays to set aside the impugned judgment and acquit her as per law.
4. Heard the argument and perused the papers the record.
5. In the light of challenge of impugned judgment by accused and above noted materials, following points fall for decision making of this court:-
1. Whether the prosecution has proved that the accused has committed the offence punishable u/sec. U/Secs. 338 of IPC?
2. Whether the impugned judgment and order of sentence passed by the learned Magistrate is called for interference?
3. What order?5
Crl.Apl.No.1187/2017
6. This court upon re-appreciation of available materials in the file with reference to prevailing law of land, give finding to the above points as follow:-
POINT NO.1 In negative
POINT NO.2 In affirmative.
POINT NO.3 As per final order, on the
following;
:REASONS:
7. POINT NO.1 AND 2 : I have perused the charge sheet material, oral and documentary evidence, other materials available on record and the impugned judgment. It is the specific case of the prosecution is that, accused person is having a Hospital by name Ganga Maternity Home and in the year 2007 C.W.1 was hospitalized for labor pain and on 17.08.2007 she was operated by way of caesarian section and a baby boy was delivered by C.W.1 and later on C.W.1 is said to have suffered with server stomach pain. Therefore, she had been to the very said hospital and this accused person stated that, it is usual to occur after a cesarean section and later on since she suffered a pain in the abdomen, she went to another hospital i.e. Ramamani Hospital wherein a scanning was advised and thereafter she was operated and found that accused person while causing a caesarian section operation had left a napkin and cotton which had caused pilferation and as such she was operated and it was due to the negligent act of the accused person. Hence the complainant lodged the complaint.
8. To prove the case the prosecution examined 4 witnesses as PW. 1 to 4 and marked 10 documents at Ex.P.1 to P.10.
6Crl.Apl.No.1187/2017 Further the statement of the accused u/sec. 313 is recorded and the accused denied all incriminating evidence against her and also submits that there is no defense evidence on her side.
9. In support of the deposition of PW.1 the complainant, PW.2 who is the doctor of Ramamani Nusring Home has specifically deposed that CW.1 visited her Hospital with frequent stomach pain and after scanning she was swelling in her stomach and discharge. Based on scanning she advised for operation and on 22.09.2007 CW.1 was operated and during the operation they found veil, cotton and napkin left in the operation area and same was removed and perforation was occurred to CW.1 and to that effect she was given a report as per Ex.P10. The evidence of PW.1 is also supported by evidence of PW.3 and 4. Further there is no I.O. is examined in the present case.
10. The trail court relying upon the deposition of PW.1 and 2 who are the complainant and doctor of Ramamani Nursing Home found that the accused is negligent and committed offence U/Sec 338 of IPC.
11. It is the defense of the accused that the entire allegations are false. It is admitted that the complainant visited the accused hospital for delivery and the accused performed cesarean section operation on 17.8.2007 and the complainant gave birth to child. Further it is specifically denied that the accused was negligent in conducting operation, whereby she left the foreign body i.e. MOP or gauge in the abdomen cavity while performing 7 Crl.Apl.No.1187/2017 caesarian section operation. It is specifically contended that the prosecution has not produced the said MOP to prove that the accused was negligent in performing the operation on complainant. It is the limb of defense of the accused that PW. 2, the other Doctor by name Padmini Prasad of Ramamani Nursing Home was having rivalry, since they are of the same profession and the accused started nursing home in the vicinity of Hospital where PW. 2 is having Hospital. It is also contended that the complainant has approached District Consumer Forum and filed case against the accused claiming compensation for the medical negligence. The said complaint was dismissed by the District Consumer Forum and held that the complainant failed to prove the medical negligence on the part of the accused.
12. The trial court mainly relying on evidence of PW. 1 and 2 convicted the accused and heavily relied upon Ex.P.10 the report submitted by PW. 2 and convicted the accused for the alleged offence. Now it has to be seen whether the appellant was negligent on her part while performing the operation on CW. 1 and she has committed medical negligence which caused injury and endanger to the life of PW. 1 and by which she has committed offence u/sec. 338 of IPC. As per the provisions of Sec. 338 of IPC who ever caused grievous hurt to any person by an act so rashly and negligently as to endanger human life or personal safety. Here the prosecution has to prove that the accused was rash and negligent in her duty while performing the operation on the complainant which caused endanger to the life of the complainant.
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13. As stated above the trial court has mainly relied upon the evidence of PW. 1 and 2. On appreciation of evidence of Pw. 1 as stated above she has narrated development took place while operation in the hospital belong to accused at Ganga Maternity Home and also subsequent development about operation at Ramamani Nursing Home belonging to PW. 2. Further PW. 2 deposed about the development took place in Ramamani Nursing Home where the complainant approached PW. 2 and PW. 2 was subjected her for scanning and there was swelling in stomach and discharge and based upon that an operation was conducted and they found foreign body in the stomach, which caused damage to the intestine and to that effect she has given report as per Ex.P.10. It is relevant to observe here that as per the case of the prosecution, mainly the evidence of P.W. 1 and 2, one Dr. Babu Bhajantri conducted operation on the complainant in Ramamani Nursing Home. It is relevant to observe that in the entire prosecution case the key witness i.e. Babu Bajantri was not examined to prove that there is a operation conducted by him in Ramamani Nursing Home and he has found foreign body in the abdomen of the complainant. He is the key witness to prove the case of the prosecution. However the prosecution has not chosen to examine said Dr. Babu Bhajantri. It is clear from the records that PW. 2 has given the report as per Ex.P.10, but she has not conducted the operation on CW. 1. During the course of cross examination PW. 2 admits that she has not conducted any operation on CW. 1, but she was present at that time. It is the defense of the accused that said Dr. Babu Bhajantri is the Plastic Surgeon and not qualified to do the said second operation. To 9 Crl.Apl.No.1187/2017 substantiate the fact that Dr. Babu Bhajantri was a surgeon to conduct operation on complainant, there is no material placed. However as stated above the prosecution has not examined Dr. Babu Bhajantri and also not produced documents to that effect. This will goes to the root of the case of the prosecution. The trial court observed that though the I.O. is not examined by the prosecution, this will not fatal to the case of the prosecution as PW. 1 and 2 the material witnesses were examined and PW. 2 has explained about the operation done upon PW.1. But the trial court out sighted the fact that since the guilt of the accused has to be proved beyond reasonable doubt, the said Dr. Babu Bhajantri was the key witness to the prosecution case who can depose that during the operation he found foreign body in the abdomen of CW. 1 which was left by the accused while conducting the Cesarean operation. But the said witness was not examined and even has not been cited as witness in the charge sheet also, which is very fatal to the case of the prosecution, as because the prosecution has to prove that there is a negligence on the part of the accused while conducting operation. Now this leads to create some cloud over Ex.P.10 report submitted by PW. 2 as she herself has not conducted operation on CW. 1. This aspect was out sighted by the trial court.
14. Further PW. 3 is the husband of PW. 1, certainly he is the interested witness who deposed in favor of the complainant and there is no much material evidence in respect of medical negligence found from the evidence of PW. 3. Further PW. 4 is the panch witness. His evidence is also of no useful, as he only 10 Crl.Apl.No.1187/2017 present at the time of mahazar at Ganga Nursing Home.
15. The another aspect to be observed here that the entire case rests upon the C.T. scan report at Ex.P.2 and 3. In the report it is stated that well circumscribed thick walled lesion with air pockets and fluid within adherent to anterior abdominal wall, possibilities include foreign body with surrounding reactive chages/localized intra peritoneal abscess. It was absolutely essential to preserve and produce MOP said to have been found in the cavity. It is also found that said MOP is not subjected to histopathical test and no attempt has been made to send faecal matter, pus formed, mass removed to analysis test for malignancy. No histopathology was done regarding the material removed from the body of the complainant. Thus non test and non production of these material is fatal to the case of the prosecution as because these are the facts which prove the guilt of the accused that the accused was negligent in her act and she has left the said foreign body in the abdomen of CW. 1 and that has caused injuries to the complainant. It is clear that when the complainant has not proved the fact of foreign body left in the abdomen cavity while performing operation the accused cannot be held responsible because in the present case the foreign body i.e. mop gauge have been found in the abdomen cavity and same was not send to the test for pathological report and mop has not been produced. Now on the basis of Ex.P.10 it cannot be concluded that the accused was negligent. Further it is very much relevant on the above said facts as because there are two operations were conducted on CW. 1. As per the defense of the accused that, it is the negligence on the 11 Crl.Apl.No.1187/2017 part of the doctors of Ramamani Hospital, where during the second operation they have damaged the abdomen part of the PW. 1 and to over come their medical negligence they have foisted the false case against the present accused. To substantiate this rival contention the prosecution has to prove the facts clearly to establish the fact that there is medical negligence on the part of the accused. But the prosecution in the present case has not taken any steps to prove the fact beyond reasonable doubt by leading evidence of key witness as well producing the test report, which creates doubt in the case of the prosecution. The prosecution has to connect the chain which prove the guilt of the accused. Moreover the complainant has filed the complaint before District Consumer Forum wherein the said complaint was dismissed as the complainant failed to prove the medical negligence on the part of the accused. The complete reliance of the evidence of PW. 1 and 2 by the trial court to convict the accused is not justifiable. Since the prosecution failed to prove the guilt of the accused beyond reasonable doubt, the benefit of doubt out to have been extended to accused. Hence considering the facts and circumstances of the case, it can be said that the trial court has not properly appreciated the entire material case on record and solely depending upon the evidence of PW. 1 and 2 passed impugned order and same to be set aside and the accused is to be acquitted. Therefore, impugned judgment and order of conviction of trial court is not correct and same call for interference of this court. Thus I answer point No.1 in affirmative and point No.2 in negative.
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16. Point No.3; In the light of finding on above point, appeal of accused to be allowed . Accordingly this court proceeds to pass the following;
:ORDER :
Appeal filed by the Appellant is hereby allowed.
Impugned judgment and order of sentence of trial court passed in C.C.No.16295/2008 dated 20.07.2017 on the file of VII ACMM is hereby set aside.
Consequently acting u/sec 235(1) of Cr.P.C. the accused is acquitted for the offence punishable u/sec.338 of IPC.
The accused is set at liberty for the above said offences.
Bail bonds if any stands canceled.
Send copy of this judgment alongwith TCR to the trial court for needful.
(Dictated to the Judgment Writer, script thereof is corrected, signed and pronounced by me in open court on this the 31st day of December, 2020) (Gururaj Somakkalavar) LXIX Addl.C.C. & Sessions Judge, Bengaluru.