Karnataka High Court
State Of Karnataka vs Dr K S Nagesh Mbbs, Md on 27 May, 2013
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 27TH day of May, 2013
BEFORE
THE HON'BLE MR.JUSTICE B.V.PINTO
Criminal Appeal No.1010/2012
BETWEEN:
STATE OF KARNATAKA
BY THE SUB INSPECTOR
OF POLICE
SANJAY NAGARA POLICE
STATION, BANGALORE ... APPELLANT
(By Sri. G.M.SRINIVASA REDDY, HCGP)
AND:
DR. K.S.NAGESH, MBBS, MD
S/o SHIVAMADIAH
AGED ABOUT 32 YEARS
R/AT No. 221, 15TH "C" CROSS
WEST OF CHORD ROAD
2ND STAGE, 2ND PHASE
MAHALAKSHMIPURAM
BANGALORE-560 086 ... RESPONDENT
THIS CRL.A. FILED U/S.378(1) AND (3) CR.P.C BY THE
STATE P.P. FOR THE STATE PRAYING THAT THIS HON'BLE
COURT MAY BE PLEASED TO GRANT LEAVE TO APPEAL AGAINST
THE JUDGEMENT AND ORDER OF ACQUITTAL DATED 1.7.11
PASSED BY THE VIII ACMM, BANGALORE IN C.C.NO.21052/08 -
ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
P/U/S 304A OF IPC.
THIS APPEAL IS COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
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JUDGMENT
Heard Sri.G.M.Srinivasa Reddy, learned HCGP regarding delay of 33 days in filing the appeal. For the reasons stated in the affidavit and for the reasons that the matter will be disposed of today itself on merits, delay of 33 days caused in filing this appeal is condoned.
2. Heard Sri G.M.Srinivasa Reddy, learned HCGP for the State regarding admission.
3. This appeal is filed challenging the Judgment dated 12.04.2012 passed in Crl.A.652/2011 by the Presiding Officer, Fast Track Court-I at Bangalore, in which the learned Sessions Judge dismissed the appeal filed by the Public Prosecutor on the ground that the said appeal is not maintainable. The 8th Additional Chief Metropolitan Magistrate, Bangalore after trying the respondent/accused for the offence under Section 304-A of IPC acquitted the accused. The charge shut was laid on the accused on the ground that on 04.11.2006, accused being an Anesthetist in M.S.Ramaiah Hospital, Bangalore administered general anesthesia instead of local anesthesia to one Savitha aged about 31 years, who was advised for surgery on her left 3 finger on account of injuries sustained on assault by the thieves and was brought to the hospital on the said date. It is the case of the prosecution that, without taking proper precautionary steps, the doctor administered general anesthesia instead of local anesthesia negligently, as a result of which, the said Savitha succumbed to the said administration of anesthesia by the respondent and therefore the police laid the charge sheet against the respondent.
4. The prosecution in order to prove the case against the respondent has examined in all 11 witnesses and got marked Exs.P1 to 13. The defence of the accused was one of total denial and he has got marked Ex.D1 in his defence. The learned Magistrate after appreciating the evidence on record has held that the prosecution has failed to prove its allegations against the doctor/accused and has passed an order of acquittal . Though the prosecution has filed an appeal before the learned Sessions Judge, the learned Sessions Judge dismissed the appeal on the ground of maintainability, but not on merits. 4
5. Sri.G.M.Srinivasa Reddy, learned HCGP for the State submits that, the prosecution has examined PW.7, who is the Chairman of the Karnataka Medical Council. In the evidence of the said witness, it is elicited that, in the present case, the general anesthesia ought not to have been used and the respondent has negligently administered general anesthesia instead of local anesthesia and that it is negligent act of the respondent.
6. The learned Magistrate after going through the evidence of the witnesses and also citing various judgments has come to the conclusion that, the decision taken by the doctor accused to administer general anesthesia cannot be found fault with. The material on record indicates that the doctor had erred in judgment in administering the general anesthesia, but there is no culpability established against the respondent. The learned Magistrate has further held that, there is neither mensrea nor any negligence on the part of the respondent and that in the best of his judgment, he must have administered general anesthesia instead of local anesthesia only to save the life of the patient.
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7. I have gone through the entire Judgment as well as the relevant materials on record. The prosecution has proved through PW.7 that, after enquiry by the Karnataka Medical Council, the doctor/respondent/accused has been held guilty of error of judgment while conducting the operation. The trial court has held that the same cannot be held against the accused for convicting him for rashness or negligence and has acquitted the accused.
8. This being an appeal against the order of acquittal, the Appellate Court should be slow in reversing the order of acquittal passed by the trial Court unless the judgment is perverse or is against the settled principles of law or against the evidence on record. From the materials placed before the Court, it is seen that the Judgment of the trial court is based on evidence on record and it cannot be said that the same is perverse or against the settled principles of law. Even if two view are possible, the Appellate Court would not replace its own view to the one taken by the trial Court unless miscarriage of justice has ensured. Since, I do not find any such ground to interfere with the well considered order of acquittal passed by the 6 trial Court, I am of the view that, appeal does not have any merits and is liable to be dismissed.
9. Accordingly, the appeal is dismissed.
Sd/-
JUDGE ksr*