Delhi District Court
State vs . G.V. Prem Kumar on 17 May, 2010
State vs. G.V. Prem Kumar In the Court of Sh. Ajay Garg, M.M (C01), Tis Hazari Courts, Delhi FIR No. 116/98 P.S Rajinder Nagar S. No. Of the case 43/2/00 Date of commission of offence 06.04.1998 Date of institution of challan 05.04.2000 Name of complainant Pramod Vashisht, S/o Sh. Bhramchari Pandey, R/o Village, Patori, Nemdar Ganj, P.S Akbar Pur, Distt.
Nawada, Bihar.
Name of accused G.V. Prem Kumar,
S/o Sh. G.R. Vishivnathan,
R/o 6/34, WEA, Karol Bagh,
New Delhi.
Offence complained of 304A IPC
Offence charged with 304A IPC
Plea of the accused Pleaded not guilty
Arguments heard/ order reserved 17.05.2010
Final order Acquitted
Date of such order 17.05.2010
Brief statement of the reasons for the decision:
1 The complainant Pramod Vashisht brought his 4 years son Sonu (since deceased) to Delhi from Bihar for his treatment. On 24.02.1998 child was taken to G.B. Pant Hospital and found to be suffering from a congenital State vs. G.V. Prem Kumar malformation of brain and spinal axis and was diagnosed as dorsal spiral dysraphasin with spasmodic/ torticolis Child was advised to have MRI of cervical dorsal spine.
On 01.04.98, MRI of Sonu was conducted at MRI Scan Centre, 35B, Pusa Road after administering sedative injection by Dr. G.V. Prem Kumar, the accused. After completion of MRI Sonu did not regain consciousness and was taken to Kolmet Hospital and got admitted but remain unconscious till 06.04.98, the day he lost his life. As per allegations child Sonu lost his life due to criminal medical negligence of accused Dr. G.V. Prem Kumar. An FIR u/s 304A IPC was registered against the accused.
2 On conclusion of investigation, chargesheet was filed and copy was supplied to accused.
3 On the basis of the record, charge for commission of offence punishable under Section 304A IPC was framed by my Ld. Predecessor against the accused on 08.01.03 to which he claimed trial by pleading not guilty. 4 In support of its case, prosecution has examined 12 witnesses. 5 PW1 Dr. Bhim Singh, Asstt. Professor conducted the postmortem examination on the body of Sonu, S/o Sh. Pramod Vashisht and kept the viscera for chemical analysis to find out the cause of death. As per Viscera examination report no. 13/CFSL/H dated 30.06.99 test report is negative for general anesthesia and other common poisons. He deposed that the cause of death is Brain Abscess and Meningitis and proved his postmortem report as Ex.PW1/A and subsequent opinion report as Ex.PW1/B. He was cross examined by the State vs. G.V. Prem Kumar defence.
6 PW2 is the complainant himself who deposed that one doctor Prem Kumar had given sedative injection to his son after which he could not regain consciousness and was expired. He pleaded ignorance as to the cause of death and to the identity of accused. He proved receipt of delivery of dead body as Ex.PW/B. This witness cross examined by the Ld. APP on the identity of accused as well as by Ld. Defence counsel on his examination in chief. 7 Testimony of PW3 is immaterial and based on hearsay evidence. 8 PW4 V.Venu Gopal, Asstt. Director Toxicology, CFSL, Hyderabad is a formal witness who proved his chemical examination report as Ex.PW4/A. He was not cross examined by the accused.
9 PW5 S.I Sanjay Singh is the second I.O who obtained the medical opinion on the viscera report of deceased Sonu from PW1 and prepared the challan. He was cross examined by the Counsel for accused. 10 PW6 Ct. Vidhichand joined the investigation alongwith S.I Jagbir Singh on receipt of DD No.9A. This witness got the case registered on the basis of Rukka and proved Identification Memos as Ex.PW6/A and PW6/B and his signature on Ex.PW2/B. He was cross examined by the defence. 11 PW7 Dr. Neeraj Jain, Senior Consultant, Chest Medicine deposed that on 01.04.1998 a child aged 4 years was brought to the ICU by his relatives and Dr. G.V. Prem Kumar, the accused. At that time child was on artificial ventilation and unable to breathe but heart was beating normally. He proved the MLC and death summary both dated 06.04.1998 as Ex.PW7/A & B respectively.
State vs. G.V. Prem Kumar He pleaded ignorance as to any injection or sedative given to the patient prior to his admission in his hospital. He was cross examined by the Ld. APP as well as Counsel for accused.
12 PW8 Dr. V. Kumar, Consultant Paediatrician, Kolmet Hospital deposed on the lines of PW7 and identified Ex.PW7/A & B. He was also cross examined by the Ld. APP as well as Counsel for accused. 13 PW9 Inspector Sube Singh is a formal witness upon whose instruction S.I V.N. Pandey collected the viscera and deposited the same in CFSL Hyderabad. He was cross examined by Counsel for accused. 14 PW10 Dr. Ajay Sharma, Professor and Head, Deptt. of Neuro Surgery, MAMC is a material witness. PW10 deposed that on 24.02.98 a patient namely Sonu aged 4 years was brought to their OPD Department and was found to be suffering from a congenital malformation of brain and spinal axis diagnosed as dorsal spinal dysraphasin with Spasmodic/ torticolis. He identified copy of OPD slip as Mark P10. He was cross examined by the defence. 15 Retd. ASI Satya Dev Lal is a formal witness being the D.O. He proved the FIR as Ex.PW11/A and his endorsement on Rukka as Ex.PW11/B by producing original of the same. Despite opportunity, he was not cross examined by the defence.
16 PW12 Inspector Jagbir Singh is the first I.O who carried out the initial investigation alongwith PW6 Ct. Vidhi Chand. He recorded the statement of complainant as Ex.PW2/A bearing his endorsement as Ex.PW12/A and got the case registered through Ct. Vidhi Chand vide Ex.PW11/A. He handed over the State vs. G.V. Prem Kumar dead body vide receipt Ex.PW2/B. This witness seized the viscera vide seizure memo Ex.PW12/B and collected the postmortem report as Ex.PW1/A. Arrest memo and Personal search memo of accused are proved by this witness as Ex.PW12/C & PW12/D. During cross examination he admitted CFSL report as Ex.PW12/DA.
17 The incriminating material was explained to the accused in his statement under Section 313 Cr.P.C recorded. The accused denied all the incriminating evidence submitting that patient namely Sonu was admitted in Kolmet Hospital on 01.04.98, however, execution of the documents were not within his knowledge. He further submitted that he has been falsely implicated in the present case without any fault on his part. Despite opportunity, he did not opt to lead D.E. 18 I have heard final arguments and also perused the record carefully. 19 Accordingly to Ld. APP for the State, the case has been proved beyond all reasonable doubts.
20 At the same time, the defence submits that the prosecution has failed to prove its case beyond all reasonable doubts. 21 In order to bring home the conviction under Section 304A IPC prosecution has to prove the following ingredients:
(a) Death of a person was caused
(b) Such death was caused by any rash and negligent act
(c)Such act does not amount to culpable homicide State vs. G.V. Prem Kumar In case before hand it is alleged that the death is caused due to criminal medical negligence of the accused. In cases of medical negligence prosecution has to prove that death is caused due to direct act of negligence on the part of accused i.e it must be the causa causans and not merely causa sine qua non . It is so held in the landmark judgment of Jacob Mathew vs. State (2005)6 SCC 3180 that in order to hold the existence of criminal rashness or criminal negligence it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was mot likely imminent. Negligence to be established by prosecution must be culpable or gross and not the negligence merely bases upon an error of judgment. And death should have been the direct cause.
17 Admittedly, the deceased was suffering from a congenital malformation of brain and spinal axis since birth which proved fatal for the child and ultimately caused the death of the child. The only act done by the accused is the administration of sedative for conducting MRI which in itself cannot cause the death of a person. As per death report Ex.PW1/B duly proved by PW1 the cause of death is Brain Abscess and Meningitis. Even PW1 deposed in his cross State vs. G.V. Prem Kumar examination that these disease cannot be developed upon administration of sedative and there is no nexus between injection of sedative and these diseases. Allegations of administration of anesthesia also stands refuted by the Viscera report Ex.PW4/A. 18 None of the witnesses deposed that death is caused due to administration of sedative by the accused. There is not even iota of evidence which attributes role of accused to the cause of death.
As discussed earlier, prosecution needs to establish that cause of death is directly related to the act done by the accused. However in this case prosecution fails to even remotely connect the cause of death with the act done by accused. There is no Causa Causans. Hence the accused is acquitted of the charge framed against him by giving him benefit of doubt.
Announced in the Ajay Garg Open Court on 17.05.2010 M.M (C01)/ Delhi
It is certified that this judgment contains seven pages and each page bears my signature.
Ajay Garg M.M(C01) /Delhi 17.05.2010