Bangalore District Court
Deepa Prashanth vs Rajalakshmi.V.Rao on 28 May, 2020
1
IN THE COURT OF XXIV ADDL. CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
DATED THIS THE 28th DAY OF MAY 2020
C.C.No.2794/02
Present: SRI. BALAGOPALAKRISHNA.
XXIV ADDL. C.M.M., BENGALURU.
COMPLAINANT : 1. Deepa Prashanth, w/o.H.G.Prashanth, 24 yrs
R/at.No.190, 8th main, Gururaja layout, Behind
Vidya Peetha, BSK III stage, Bangalore.
2. H.G.Prashanth, s/o.H.N.Gopinatha Rao,
31 yrs, R/at.No.190, 8th main, Gururaja layout
Behind Vidya Peetha, BSK III stage,
Bangalore.
3. Pragathi Prashanth, d/o.H.G.Prashanth, rep.by
Father H.G.Prashanth, R/at.No.190, 8th main,
Gururaja layout, behind Vidya Peetha, BSK III
Stage, Bangalore.
V/s.
Accused 1. Rajalakshmi.V.Rao, R/at.No.131, 50 ft., road,
Hanumanthanagar, Bangalore.
2. Mrs.Brindavan Nursing Home, rep. By its
Proprietor Dr.A.Prakash, aged 64 yrs, R/at.No.9,
4th main, Chamarajpet, Bangalore.
2
3. Shankar Hegde (Dropped by the Hon'ble High
Court of Karnataka in Crl.Pet.No.2739/10 dtd:
26/4/19)
DATE OF COMMENCEMENT OF : 05/08/01
OFFENCE
DATE OF ARREST OF THE : Accused No.1 and 2 are on bail.
ACCUSED
OFFENCES ALLEGED : U/s.338 of IPC
DATE OF COMMENCEMENT OF : 28/10/02
EVIDENCE
DATE OF CLOSING OF : 31/01/20
EVIDENCE
OPINION OF THE JUDGE : Accused found not guilty
(Balagopalakrishna.)
XXIV A.C.M.M., BENGALURU.
JUDGMENT
This is a private complaint filed by Smt. Deepa Prashanth, H.G.Prashanth and Kumari. Pragathi Prashanth u/s.200 of Cr.P.C., alleging that the accused i.e., Dr. Uma Prakash and Dr.A.Prakash being the Proprietors of Brindavan Nursing Home, Dr.Rajalakshmi.V.Rao and Shankar Hegde have committed an offences punishable U/s.415 and 418 of IPC.
2. Soon after filing the complaint, this court has taken cognizance 3 and posted the case for sworn statement of the complainant.
3. Sworn statement of H.G.Prashanth and also one Dr.Aarathi Prasad was recorded on 3/12/02 and this court passed the order as under:
"Register the case in Register No.3 against the A1 to 3 for the offences punishable u/s.322, 338 r/w.34 of IPC and issue Summons to the A1 to 3."
4. After issuance of summons, the accused were appeared before this court and they were enlarged on bail.
5. The records reveal that all the accused were filed application u/s.245 of Cr.P.C., to discharge them, this court by passing considered order on 20/9/08 dismissed the said application filed by the accused. Being aggrieved by the said order, all the accused have preferred a Crl.R.P.No.509/2008 before FTC5, wherein the said Crl.R.P. allowed in part with the following order :
The Present Revision Petition filed under Section 397, by the Revision Petitioners is hereby partly allowed.
The impugned order dtd: 20/9/08, passed in CC.No.2794/2002, by the learned I ACMM, Bangalore is hereby set aside and modified as under:
4 The application filed by accused No.1 under Section 245 of Cr.P.C., is hereby allowed. Accused No.1M/s.Brindavan Nursing Home, represented by its Proprietor, Dr.A.Prakash is hereby discharged.
Further, the order passed regarding to frame accusation under Section 322 r/w.323 of IPC against petitioner Nos.2 and 3 is also hereby set aside.
The Order of the learned Magistrate regarding to frame accusation under Section 338, r/w.34 of IPC is hereby confirmed against petition Nos.2 and 3.
Being aggrieved by the said order the complainant herein have preferred an Crl.Writ.Petition.No.2739/10 clubbed with Crl.A.No.895/11 before HHCK, wherein on 26/4/19 the Hon'ble HHCK has pleased to pass the following Order:
Criminal Petition No.2739/10 is allowed in part. The order dtd: 6/1/10 passed by the City Fast Track Court (Sessiosn) Judge, Bengaluru in Criminal Revision Petition No.509/2008 and the order dtd: 29/10/08 passed by the learned I Addl.Chief Metropolitan Magistrate, Bangalore under Section 245 of Cr.P.C., is modified. Accused No.3 is discharged of the offences punishable under section 322, 323 and 338 r/w.34 of IPC. Accused Nos.1 and 2 are 5 discharged of the offences punishable u/s.322 and 323 of IPC. The application filed by accused Nos.1 and 2 for their discharge for the offences punishable u/s.338 r/w.34 of IPC is dismissed. Consequently, accused No.1 and 2 shall face trial for the offences punishable u/s.338 r/w.34 of Indian Penal Code.
6. In view of the said order passed by the HHCK, now the case is only against accused No.1 and 2 i.e., Dr.Rajalakshmi.V.Rao and Dr.A.Prakash, Proprietor, M/s.Brindavan Nursing Home. Soon after receipt of records, this court has recorded the plea of the accused No.1 and 2. They pleaded not guilty and claimed for trial.
7. On the side of the complainant Prashanth.H.G is examined as PW 1, Deepa Prashanth is examined as PW 2, sworn statement of Dr.Arathi Prasad treated as PW 3, victim Kum.Pragathi examined as PW 4 and got marked Ex.P.1 to Ex.P.16.
8. On the side of the accused, accused No.1 by name Smt.Dr.Rajalakshmi.V.Rao examined as DW 1, Ex.D.1 is got confronted.
9. The case of the complainant in brief are as under:
It is submitted that accused No.2 by name Dr.A.Prakash being a 6 Proprietor running a Nursing Home by name and style M/s.Brindavan Nursing Home. Accused No.1 by name Dr.Rajalakshmi.V.Rao working in the said Nursing Home as a Gynecologist and Obstetrician. It is further stated that as per the advice of accused No.2, the complainant No.1 by name Smt.Deepa Prashanth was admitted to the nursing home of accused No.1 for the purpose of delivery. Accordingly, on 5/8/01 the complainant No.1 delivered female child i.e., complainant No.3. After the delivery it was informed by accused No.2 that during delivery while pulling the child the left arm slightly got strained and it will be alright by 1015 days. It is further stated that at the time of delivery the accused No.2 got delivered the baby in the process of FORCEPS, because of that left hand of the third complainant looked twisted at the wrist, elbow and also shoulder bones. This was caused due to the negligent act of the accused No.1 and 2. It is further submitted that the complainants have approached the Physiotherapist for the treatment of 3rd complainant, she told that if the baby would have come for treatment within the 1015 days of the delivery, definitely the said infirmity would have been successfully cured. It is further stated that even after the delivery the doctors were not advised the complainants and behaved negligently and root cause for disability of the complainant No.3. Therefore, the complainants were issued notice to the accused, but they have replied untenably. Accordingly contended that the accused have committed an offence u/s.338 r/w.34 of IPC. 7
10. After conclusion of the evidence of complainant's side, Statement of the accused as required U/s.313 of Cr.P.C. is recorded. The accused have denied the incriminating evidence found in the evidence of complainant side as false. The accused No.2 herself examined as DW 1 and got marked Ex.D.1.
11. Heard both side.
12. The following point arises for my consideration:
1) Whether complainant proves beyond
reasonable doubt that, on 5/8/01 the
complainant no.1 was admitted to the hospital of accused No.2 i.e., M/s.Brindavan Nursing Home for delivery, wherein the accused No.1 by name Rajalakshmi.V.Rao being a Gynecologist and Obstetrician, at the time of delivery, conducted FORCEPS delivery so rashly or negligently endanger to the personal safety of the baby at the time of discharging her duty as a Professional Doctor and caused permanent disability to the left hand of complainant No.3, thereby committed an offence punishable u/s.338 of IPC ?
2) Whether accused are made out a ground to register a case against PW 3 for the offences punishable u/s.191, 193, 417, 418, 419, 425, 469, 471 of IPC ?
3) What order?
13. On the basis of the evidence available on record my findings on the above points are as under:
8 Point No.1 In the Negative.
Point No.2 In the Negative Point No.3 As per final order for the following;
REASONS
14. POINT NO.1 :
As discussed above, in view of the direction given Hon'ble High Court of Karnataka, this court has framed the Plea of the accused u/s.338 r/w.34 of IPC. It is not in dispute among the complainants and the accused that on 5/8/01 the complainant No.1 was admitted to the hospital of accused No.2 by name Dr.Prakash who is running Nursing Home in the name and style M/s.Brindavan Nursing Home at Bangalore. It is also admitted fact that the accused No.1 working in the said Nursing Home as a Gynecologist and Obstetrician. It is also not in dispute that the complainant No.1 was attended by the accused No.1. It is also not in dispute that the delivery was taken place under the process of FORCEPS delivery. According to the complainant, since the accused No.1 by applying more force and pulled the baby, the complainant No.3 had suffered shoulder dystocia, thereby her left hand leads to ERBSPALSY. This was occurred due to the absolute negligence on part of the accused persons, therefore, the entire life of the complainant No.3 has been spoiled and there is an apparent disability of 9 left hand, thus, accused No.1 and 2 were committed the offences u/s.338 r/w.34 of IPC.
15. Before discussing the evidence of both the sides, it is necessary to mention what are all the points has to be proved by the complainant in order to attract the said section.338 r/w.34 of IPC. Accordingly, following ingredients has to be proved :
1) The accused did an act rashly and negligently ;
2) That such act endangered human life or personal safety of others ;
3) Such act caused grievous hurt to some person ;
Having considered the said ingredients of Sec.338 of IPC, now the court has to evaluate the evidence of complainant.
16. Before discussing the evidence of the respective parties, the court has to consider Sec.34 of IPC is attracts to the accused No.2 who is the owner of the M/s.Brindavan Nursing Home. The learned counsel appearing for the complainant vehemently argued that since the accused No.2 has allowed the accused No.1 to practice as a Doctor i.e., Gynecologist and Obstetrician, both are equally responsible for the disability caused to the complainant No.3. On the other hand, the defence counsel Sri.BRD, Advocate submits that merely the accused No.2 allowed the accused No.1 to practice as a Doctor in his Nursing home is not attracts the ingredients of Sec.34 of IPC. As per the 10 reported ruling of Hon'ble Supreme Court reported in 2016 AIAR (Criminal) page No.28 in the matter of Balu @ Balasubramanyam and another v/s.State (Union Territory of Pondicherry) wherein at para No.10 it is pleased to hold that : To invoke Sec.34 of IPC it must be established that the criminal act was done by more than one person in furtherance of the common intention of all, it must, therefore, be proved that : (I) There was common intention on part of several persons to commit a particular crime and ;
(ii) The crime was actually committed by them in furtherance of that common intention.
The essence of liability under Sec.34 of IPC is simultaneous conscious of mind of a person pertaining in the criminal action to satisfied when an overact is established qua each of the accused. Common intention implies pre arranged plan and acting in concert pursuant to the pre arranged plan. Common intention is an intention to commit the crime actually committed under each accused persons can be convicted of that crime, only if he is participated in that common intention.
11 Under the backdrop of the said, the case of the complainants has to be considered. Except the accused No.2 is the owner of the Nursing home, nowhere it is stated what is the role of the accused No.2 at the time of delivery of the complainant No.1. Merely the accused No.2 has provided a place to accused No.1 to practice and allowed her patient to admit in his Nursing home, it cannot be said that both were joining together in order to commit crime. Nowhere in the complaint as well as in the evidence role of accused No.2 is stated. Therefore, Sec.34 of IPC is not attracts to the accused No.2.
17. The second complainant by name Prashanth.H.G, he himself examined before the court, in his examination in chief he has reiterated the avernments made in the complaint. The gist of his evidence is that the accused No.2 being an expert doctor at the time of doing Forceps delivery she has used more force and caused shoulder Dystocia which leads to ERBSPALSY, thereby his daughter has become permanently disabled i.e., the left hand of the complainant No.3 is not functioning properly and also look awkward. Through him following documents are got marked:
Ex.P.1: is the Antenatal Record
Ex.P.2: is the Baby Card
Ex.P.3: is the Admission receipt
Ex.P.4: is the Discharge summary
Ex.P.5: is the ENMG report
Ex.P.6 P.13 : are the photos of complainant No.3 showing her left 12 hand Ex.P.14 : are the Negatives Ex.P.15 : is the Disability certificate of the complainant No.3 Ex.P.14: is the Disability certificate (wrongly marked as Ex.P.14) Since the said documents are not disputed by the parties, there is no need to discuss about the said documents produced by the complainant.
In the cross examination it is total denial of the examination in chief and following facts has been elicited from the mouth of the PW 1:
1) I was told by the doctor that she made delivery of my wife with the help of Forceps.
Immediately after delivery accused No.2 told to me that she used Forceps for delivery, as it was necessary, apart from action of left hand of the baby, remaining all health condition of the baby was appearing to be good..... on the same day accused No.3 visited the Nursing home and examined the baby about movement and health condition of my daughter.
It is true that in order to safeguard the interest of parents i.e., mother and child, accused No.2 Rajalakshmi had taken a decision to remove the child with the help of Forceps. It 13 is true that accused No.2 Rajalakshmi had no any bad motive to cause any harm or loss to my daughter or my wife at the time of delivery of my wife.
18. The PW 2 who is none other than the complainant No.1 and wife of PW 1, she has reiterated the evidence of PW 1 i.e., her husband and also deposed that her baby had ERBSPALSY at the time of delivery, because of that her daughter cannot raise her left hand. She further deposed that after delivery accused No.1 told that it will become alright after 1015 days. Dr.Shankar Hegde has also given treatment, he has also stated that problem of her daughter will be alright within 1015 days. She further deposed that after 5 months, the said Dr.Shankar Hegde told to her that meet Physiotherapist by name Arathi Prasad. She further deposed that accordingly, she went to Dr.Arathi Prasad , she told that if she approached her within 1015 days, from the date of the delivery, the problem of her daughter would have been cured and then started to give Physiotherapy. She has also deposed that she has also taken her daughter to Ayurvedic, Homeopathic etc., In the cross examination it is total denial of the chief examination and following facts has been elicited form the mouth of PW 2 :
1) At the time of delivery, A2 Dr.Rajalakshmi was all along present with me since pain started to me till 14 delivery. I was under semi conscious at the time of delivery. I did not have conscious whether I was unable to push the child at the time of delivery, so also I do not know whether the baby's body partly come out and it was stuck at the time of delivery. I was not knowing whether A2 Dr.Rajalakshmi was forced to take use of Forceps to get the baby out in order to save the baby.
2) There was no intention with the Doctors to damage the hand of my daughter before my delivery.
3) It is further suggested that without following the advise given by doctors, I myself caused negligence for the non improvement of the left hand of my daughter, same is denied by the witness.
19. PW 3 is the one Dr.Arathi Prasad, her sworn statement is subject to cross examination. She has deposed that in the month of December 2001, complainant No.1 and 2 came to her hospital for consultation and gave a history of their daughter i.e., complainant No.3 that there is no proper movement of left upper arm of the said child since its birth, accordingly, she examined and found that muscles in the left upper arm were not properly working and due to which movement of the left upper arm was incomplete. She further deposed that when the baby was aged about 5 months, the complainants were brought the baby in the month of December 2001. She further deposed that the 15 problems suffering by the complainant No.3 can be caused due to mishandling of child at the time of delivery by the doctor or the person who attended the pregnant lady. She further deposed that such a kind of problem would crop up in case of Forceps delivery. She further deposed that the muscles of the left upper arm had become weak due to some injury to the Brachialplexuseo. She further deposed that on account of delay in consulting a Physiotherapist, there is a problem in growth of left upper arm bones, this could have been avoided if the child was immediately taken to Physiotherapist soon after the problem was known.
In the cross examination she has admitted that she is not a Medical Practitioner, but she being a Physiotherapist she can be called as Para Medical Practitioner. She further admitted that she being a Physiotherapist, she has not conducted any delivery and also admitted that accused No.1 and 2 are the medical practitioners. She further admitted that she has not studied any topic in respect of Gynaec and Obstetrician while she was pursuing BPT course. It is further denied that she has given false evidence, same is denied by the witness. She further admitted that since she is a Physiotherapist she cannot give her opinion in respect of Gynecologist and Obstetrician issue.
20. PW 4 who is the victim and complainant No.3 in this case. She has given her evidence to the effect that she has taken Disability 16 certificate from the concerned department, which are marked at Ex.P.14 and Ex.P.15. In the cross examination she has admitted that she has taken Ex.P.14 and Ex.P.15 for the first time and same were taken for the purpose of get the benefits from the Government. It is suggested that in order to get a medical seat in Ayurveda, she has taken false certificate, same is denied by the witness.
21. After conclusion of the complainant evidence, statement of the accused as contemplated u/s.313 of Cr.P.C., was recorded, at that time, the accused were denied the incriminating evidence found in the evidence of complainant as false and the accused No.2 has been examined as DW 1. In her examination in chief she has deposed that she did her MBBS and MD (Obg) and she got herself enrolled at Karnataka Medical Council and practicing from 36 years as a Gynecologist and Obstetrician. She further deposed that as a Obstetrician and Gynecologist she used to conduct 3035 deliveries in a month. She has also deposed that the complainant No.1 was admitted to Nursing home of accused No.1 on 5/8/01 at about 4.00 AM, she received a phone call and gone to the said Nursing home and taking care of her.
22. She further deposed that on the same day at about 4.30 am., the complainant No.1 complained about the severe delivery pain, so she came to the conclusion that she is ready to deliver the baby. 17 Accordingly, she was giving instructions which are necessary for natural delivery and in the meantime, she has put drips and she was observing the fetal while following her instructions at about 6.00 to 6.30 am., complainant No.1 went unconscious and failed to follow her instructions, at the same time, the baby came out and stuck in the fetal outlet, she observed that the fetal monitor wherein the heart beat of the baby coming down, so she being an expert arrived a conclusion that within 10 minutes, the baby should have come out failing which there would be serious endanger to mother as well as baby, accordingly she has conducted Forceps delivery. She further deposed that for Forceps delivery, the delivery will be conducted with the assistance of instruments in the above said emergency circumstances. Delivery by way of Forceps has become common and it is universally accepted process in the medical field.
23. She further deposed that ERBSPALSY is a weakness of nerves. In respect of the above on the date of delivery itself she has mentioned the same. She further deposed that the said ERBSPALSY would not occur because of the delivery by the process of Forceps, it was caused due to Shoulder Dystocia. She further explained Shoulder Dystocia means when the baby coming out of the womb and stuck in pelvic outlet, the neck portion would be expanded and taken twist, at that time, force of the nerves and Shoulder Dystocia would be caused, for the said reason ERBSPALSY would be caused. She further deposed that the said fact would not come to her knowledge from outside, but she can 18 observe the problem to the kid in the fetal monitor. Thus, contended that without any alternative she has conducted Forceps delivery. She further deposed that if the Forceps delivery was not conducted, there would be a lack of supply of oxygen and also supply of blood to baby and there would be every chance of death of the child. She further stated that such situation may leads that the baby would become mentally retorted. She further deposed that if the Forceps delivery was not conducted, the mother would be sustained injury to urinary bladder, rectal injury, bleeding and it leads to infection and there would be a chance of death. She further deposed that in the said situation i.e., when the baby coming out of the womb and struck in pelvis outlet, no Cesarean surgery could be conducted to remove the child. She further deposed that soon after delivery, she intimated about the ERBSPALSY and also delivery conducted by Forceps to the complainant No.2 and same was also mentioned in the observation sheets. She further deposed that she has also advised complainant No.1 to contact Paediatrician and take advice about the ERBSPALSY of complainant No.3 and also advised to go for some exercise. She further deposed that within 6 months from the date of the delivery, if complainant No.1 and 2 would have followed the instructions given by her and Paediatrician, definitely there would be a 96% chance of cure. She further deposed that she being a Dutiful doctor she has taken all the precautionary measures and delivered the baby and she has not shown any negligence while discharging her duty as a Doctor, accordingly prayed to dismiss the complaint.
19 In the cross examination it is elicited that she has not produced the case sheet in respect of hospital i.e., Brindavan Nursing Home. It is further elicited that when the complainant No.3 was in the Nursing home , she has given advice for range of movements and then sent the baby to one Dr.Shankar Hegde who is the Paediatrician and claimed ignorance what advice he has given. It is suggested that whatever the disability caused to the complainant No.3 is permanent disability, for that Physiotherapy and surgery can also be done, witness volunteers that there is no guarantee to cure the problem of complainant No.3. it is further suggested that when complainant NO.1 went unconscious, the child would have taken out by doing Cesarean, same is denied by the witness as false. It is admitted by the witness on the basis of the Scanning report, she being a Doctor she can take decision or arrive a conclusion whether patient can have normal delivery or Cesarean. It is denied that she is deposing false that the complainant No.3 came out from womb and stuck in the pelvic outlet. It is suggested that at the time of conducting Forceps, she has to take permission of the husband of complainant No.1 or relative, witness volunteers that at the time of admission, same was taken, she volunteers that in an emergency, at the time of conducting Forceps, she need not taken such consent. It is suggested that because of delivery conducted by way of Forceps, the disability was caused to the complainant No.3, same is denied by the witness. It is suggested that when baby stuck in pelvic outlet, she may not aware which delivery she is going to conduct and rest of the cross examination is just denial of the chief examination. 20
24. The learned counsel appearing for complainant Sri.HM vehemently argued that because of absolute negligence on the part of the accused No.1, the complainant No.3 had permanent disability to her left hand and thereby her future is become bleek. Apart from his oral argument, he has also filed written argument with the following rulings:
1) AIR 2008 SC 1385
2) (2010)5 SCC 513
3) 2013 (12) SCC 308
4) AIR 2012 SC 3802
5) AIR 2013 SC 2997
6) Articles related to Brachial Plexus Injury and Erb's Palsy
25. On the other hand, learned counsel appearing for the accused No.1 and 2 vehemently argued that accused No.1 being a Dutiful doctor considering the emergency and also in order to safeguard the life of complainant No. 1 and 3, she has conducted Forceps delivery and because of that delivery, ERBSPALSY would not have occurred and whatever the procedure the accused No.1 is adopted in a case of complainant No.1 is universally accepted procedure. Therefore, absolutely there is no negligence on part of the accused No.1 and it is further stated that accused No.2 is the owner of the Brindavan Nursing Home wherein delivery was conducted by the accused No.1, thus, both of them were not behaved negligently and they were discharged their duties as a dutiful doctors, accordingly, prayed to acquit the accused No.1 and 2. In support of his arguments, he has produced the 21 following:
1) Photograph and explanation of shoulder Dystocia
2) ERBSPALSY or Brachial Flexus Palsy by William Obstetrics 20 th Edition
3) Medical Literature on ERBSPALSY
4) (2005 ) 6 SCC page No.1 in the matter of Jacob Mathew v/s. State of Punjab and others
5) AIR 2004 SC
6) 2003 (51) BLJR 686
7) (2009) 3 SCC page No.1
8) (1957) 1 WLR 582 in the matter of Bolum case
26. In this case, A1 is Dr.Rajalakshmi.V.Rao and A2 is Dr.A.Prakash, Proprietor of Brindavan Nursing Home, Bangalore. From the above evidence of complainant the court has to verify in the case of complainant No.1, the accused No.1, the A2 being a owner of Brindavan Nursing Home allowed the accused No.1 to do practice as a Doctor, the accused No.1 had behaved negligently by conducting Forceps delivery and thereby caused ERBSPALSY to the complainant No.3, thereby accused No.1 and 2 are committed an offence punishable u/s.338 r/w.34 of IPC. It is not in dispute among the parties that accused No.2 is the owner of the Brindavan Nursing Home, whereas accused No.1 working as a Gynecologist. It is also admitted fact that complainant No.1 was regular check up under the accused No.1 in the hospital of accused No.2. It is also admitted fact that on 5/8/01 the complainant No.1 was admitted to hospital of accused No.2 for delivery and delivery 22 was conducted by accused No.1. It is also admitted fact that the accused No.1 was conducted a Forceps delivery and taken out the baby.
27. Before considering the case of the complainant it is just and necessary to define what is ERBSPALSY. According to some literatures produced by the complainant on 4/9/08, ERBSPALSY is a Nerve injury that effects the movement of a child's shoulder, arm and hand. The injury usually happens when too much force is applied to the baby's head, while trying to pull out, the baby stuck in the birth canal, the baby may be too large to fit easily through the birth canal. When the baby's shoulder gets stuck in the birth canal is called shoulder Dystocia.
Pulling on the baby's head stretches and injuries the nerves in the stuck shoulder. The injured nerves are between the shoulder and the neck. They provide movement to the arm, hand and fingers. This collection of nerve fibers is called Brochial Plexus or ERBSPOINT.
Most of the time, these nerves are only mild injured, and the baby may regain movement in few months. Unfortunately, about 20% of the time, the injury is so severe, or the nerves are actually anlysed (torn from their points of attachment to the spine), or they may be ruptured, so that paralysis of the arm and shoulder is 23 permanent.
On the backdrop of the said definition now comes to the case on hand. On 5/8/01 the complainant No.1 was admitted to hospital of accused No.2 and accused No.1 conducted delivery by means of Forceps. Firstly the court has to appreciate whether it was so emergency to accused No.1 to go for Forceps delivery, because, as per the argument of Sri.HM advocate, the accused No.1 instead of conducting Cesarean, the accused No.1 has conducted Forceps delivery, therefore, she behaved negligently. At this stage, now comes to the evidence of DW 1 i.e., accused No.1, according to her, on 5/8/01 at about 4.00 am., the complainant No.1 admitted to Brindavan Nursing Home on the history of Labour pain. Soon after admission she received a phone call from the said Nursing home, she has conducted all the examination till delivery. She further stated that at about 4.30 am., the complainant No.1 had severe labour pain which indicates she is ready to deliver the baby, accordingly, she was given all the instructions to complainant No.1 apart from putting drips and managing the foetus. It further reveals that the complainant No.1 was also following instructions of the DW 1 and suddenly in between 6.00 to 6.30 am., the complainant No.1 went unconscious and failed to follow her instructions and the same time, the baby came out and stuck in the pelvic outlet and heart beat of the baby was coming down, therefore, she being a expert Doctor, the baby has to come out within 10 minutes, otherwise, there would be a severe danger to baby as well as mother. Accordingly, she conducted Forceps delivery by using instrument meant for that. This 24 fact has not been seriously denied by the other side except suggesting that instead of conducting Cesarean, the accused No.1 conducted Forceps, which is denied by the accused No.1. considering the above facts and circumstances of the case, the court is of the opinion that under the above narrated circumstances, there was no option for the accused No.1 to go for Forceps delivery to remove the baby which was stuck inside the pelvic outlet, failing which there will be a danger to baby as well as mother.
28. Now let me clarify what is Forceps delivery. According to the some medical literature produced by the complainant under the chapter Operative Vaginal Delivery, it says the proper use of Forceps or Vaccum extractors remains a safe and effective technique for achieving the universal goal of a healthy mother and baby. Although there is a periodic and vocal demand to delete assisted vaginal delivery, clinical experience provides recurring evidence that living all to natural forces or scalpel will not accomplish this goal. (American College of Obstetrician Gynecologist, 1994 Robinson 1994) when criteria for outlet Forceps are meet, and there is a significance abnormality of the foetal heart rate, there is no question that assisted or operative vaginal delivery is indicated..............
29. Functions and choices of Forceps:
The Forceps may be used as a tractor, rotator or both. It is 25 most important function or traction, although particularly in traverse and posterior position of the occiput, forces may be invaluable for rotation. Any properly shaped instrument will give satisfactory result provided that it is used intelligently.
The termination of labour by Forceps, provided it can be accomplished safely, is indicated in any condition threatening the mother or foetus is likely to be relieved by delivery.
30. From the above literature it is obviously clear that in order to terminate the labour when there is a severe threat to mother or foetus, the Forceps delivery is permissible. Now comes to the case of the complainants, as stated above on the date of the delivery at about 6.00 to 6.30 am., the complainant No.1 went unconscious and fails to follow the instructions for natural delivery, at that time, the baby came out from the womb and stuck in the pelvic outlet, at the same time, the heart beat of the baby was coming down, so, considering the emergency and to safeguard the mother as well as baby, the Forceps was conducted and delivery was done, which is universally accepted procedure.
31. In the present case, the accused NO.1 under compelling circumstances to safeguard the two lives has adopted the said procedure. Now the complainant has to establish before the court whatever the delivery procedure adopted by the accused No.1 is not 26 correct and same is not contemplated under the Medical field. In order to prove the said aspect, the complainant has to examine competent doctor who is having expertise in the subject i.e., Gynecologist and Obstetrician. Here, the complainant has got examined one Smt.Arathi Prasad, Physiotherapist at the time of sworn statement and she was subjected to cross examination by the defence counsel. The sworn statement of the said Physiotherapist was recorded on 11/11/02 and she was subjected to cross examination on 4/12/19. In the cause title of the deposition, her occupation is mentioned as Medical Practitioner, Ramakrishna Nursing Home, Jayanagar, her evidence reveals that whatever the problem had by complainant No.3, can be caused due to mishandling of the child at the time of delivery by the doctor or the person who attended the pregnant lady. Such kind of problem would be crop up in case of Forceps delivery. In the cross examination, when it is suggested that the Physiotherapist cannot be prefix as a Doctor to her name, witness failed to answer, she has also admitted that in medical field, the Physiotherapist would be called as Paramedical practitioner. She further admitted that she can give opinion in a case filed against Physiotherapist but not in the present case. She further admitted that as a Physiotherapist she has not conducted any delivery. From the evidence of PW 3 what is gathered is the complainants instead of examining the competent doctor who is having expertise in Gynecology and Obstetrician, a Physiotherapist has been examined. On the basis of the evidence of the Physiotherapist, the court cannot come to the conclusion that whatever the procedure adopted by the accused No.1 at the time of delivery is not correct. The Physiotherapist can give a 27 treatment as per the advice of the qualified doctor, but, in the present case on the basis of the opinion of the PW 3, the court cannot come to the conclusion that the accused No.1 has mishandled the situation at the time of delivery. Therefore, evidence of PW 3 is not helpful to the complainant to arrive a conclusion that because of the fault of the accused No.1, the complainant No.3 had ERBSPALSY. In the absence of the expert opinion the court cannot come to the conclusion that the accused No.1 at the time of delivery acted negligently and caused permanent disability to complainant No.3. As stated above, the only contention taken by the complainant advocate that the accused No.1 instead of conducting surgery, purposely conducted Forceps delivery. To prove the said aspect, the complainants have not examined any expert in the field, therefore, on the basis of the evidence of PW 1 and 2, the court cannot come to the conclusion that the accused No.1 has adopted wrong method.
32. The complainants' advocate in his oral argument as well as in his written arguments, taken a contention that the accused No.1 has not taken consent of the husband of the complainant NO.1 or relative and also contended that consent is a must for surgery. In this regard, he pressed into the service of reported ruling of Hon'ble Supreme Court reported in AIR 2008 Supreme Court 1385 in the matter of Sameera Kohli v/s.Prabha Manchan and others wherein at para No.13 it is pleased to hold that "before performing an operation the Physician should obtain in writing the consent from the husband or wife, 28 parent, guardian in case of minor, or the patient himself as the case may be. In an operation which may result in sterility the consent of both husband and wife is needed.
The said ruling is not applicable to the case on hand, because, in the cross examination of DW 1, a suggestion was put by the complainants counsel that ಪಪೋರರ್ಸೆಪಪ್ಸ್ ಹೆರಿಗೆ ಮಾಡಡುವಾಗ ಮಹಿಳೆಯ ಗಗಂಡನ ಅಥವಾ ಸಗಂಬಗಂಧಿಕನ ಅನಡುಮತಿ ಪಡೆಯಬಪೋಕಡು ಎನಡು ನ ವ ಸಸೂಚನೆಗೆ ಸಾಕ್ಷಿ ಹೆರಿಗೆಯನಡು ನ ಮಾಡಲಡು ದಾಖಲಾತಿ ಪಡೆದಡುಕಸೂಳಡು ಳ ವ ಮಡುನನ ಒಪಪ್ಪಿಗೆ ಪಡೆದಿರಡುತತಪೋವ, ಆದರೆ ಪಪೋರರ್ಸೆಪಪ್ಸ್ ಹೆರಿಗೆ ಮಾಡಡುವಾಗ ಮಗಡುವಿನ ತಡುತಡುರ್ಸೆ ಸಮಯದಲ್ಲಿ ಆ ಒಪಪ್ಪಿಗೆ ಬಪೋಕಾಗಿಲಲ ಕಾರಣ ತಾಯಿ ಮತಡುತ ಮಗಡುವಿನ ಪಪ್ರಾಣ ಉಳಿಸಲಡು ತಿಪೋಮಾರ್ಸೆನ ತಗೆದಡುಕಸೂಗಂಡಿರಡುತತಪೋವಗಂದಡು ನಡುಡಿಯಡುತಾತರೆ.
33. Another point has to be appreciated is whether Forceps delivery is comes under the definition of surgery or not. Here, as per the evidence of accused No.1, it is only an instrument when the baby stuck in the pelvic outlet or birth canal, by using Forceps instrument, the baby will be pulled out, but not a surgery. Under such circumstances, consent of the patient or husband of the patient or relative does not arise. In the present case, as discussed above, the complainant No.1 was ready for natural delivery and she was following the instructions of accused No.1 and in between 6.00 to 6.30 am., the complainant No.1 went unconscious and failed to give pressure to pull out the baby, at that time, the baby was stuck in the pelvic outlet, under such 29 compelling circumstances, the accused No.1 was used Forceps in order to safeguard the baby and mother. Thus, the said ruling is not applicable to the case on hand, since it is not a case of surgery.
34. Another ruling relied by the complainant counsel is (2010) 5 Supreme Court Cases 513 in the matter of V.Krishna Rao V/s.Nikhil Super Speciality Hospital and another. On the basis of that the complainant counsel argued that the rule of Res Ipsa Loquitur has to be applied that is to say the act itself proves the negligent of the accused No.1. With great respect I am unable to apply the said ruling to the case on hand. Firstly the complainants have not examined expert in the field i.e., Gynecologist and Obstetrician. Secondly, the said Expert is only a competent to say when the baby stuck into the pelvic outlet, other than Forceps, what method to be used by the doctor. Here, the act of the accused No.1 under the attending circumstances in order to safeguard the baby and mother and not otherwise.
35. Another rulings pressed into the service by the complainant counsel in respect of sentencing policy which is not useful at this stage.
36. In this case, as discussed above, evidence of PW 3 i.e., Arathi Prasad is not a competent witness because she is only a Physiotherapist and she herself cannot be called as a Doctor. The learned counsel appearing for accused vehemently argued that the evidence of PW 3 cannot be taken into consideration while assessing the negligence on part of the accused No.1 because the PW 3 does not possess minimum 30 required qualification i.e., MBBS and any Diploma in Gynecologist and Obstetrician. He further argued that PW 3 can act as per the advice of qualified doctor. In order to substantiate his argument, he pressed into the service of reported ruling of Hon'ble High Court of Patna reported in 2003 (51) BLJR 686 in the matter of Sri. Sarjoo Prasad and Others v/s. The State of Bihar and Others, wherein it is pleased to hold that Admittedly, occupational Therapists or Physiotherapists muchless those posted in Vikalang Bhawan, like Shri Sarjoo Prasad and others, are not enrolled on the State Medical Register within the meaning of Section 15(2) (b). No notification conferring upon them any right to practise their system of medicine by the State Government was brought to our notice. In this view of the matter notwithstanding that the Occupational Therapy and Physiotherapy have acquired the status of recognised disciline in medical science, they cannot practise modern scientific medicines. 14.A ide issue decided by the order under review, related to the use of prefix, 'Doctor' i the name. The term 'doctor' has been defined in Stedman's Medical Dictionary (furnished by the review petitioners themselves - at page 216 of the petition part of Annexure 21) as under - (1) A (sic) itle conferred by a University on one who has followed a prescribed course of study, or given as a mark of distinction; as doctor of medicine, doctor of laws philosophy etc. (2) A Physician, especially one upon whom has been conferred the degree of M.D.by a University or medical 31 school. It was stated on behalf of the revic petitioners that MBBS doctors are called as such as a courtesy. It is not necessary to go into the history as to how MBBS doctors, or the like, started using the pre ix 'Doctor' in their names, or started being addressed as such. The question of courtesy or respect apart, in terms of the medical definition of the term (supra), a person who has not been conferred this title after a prescribed course of study cannot use it as a prefix in his name as of right. In villages even quacks call themselves and are sometimes addressed by others as doctors but they cannot claim it as part of their status. All said, the order under review was passed in a particular context and in respect of person who did not have the degree on the basis of any prescribed course of study. 15. Before taking up the review petition for final hearing notice was issued to the Medical Council of India and the Indian Medical .............. Thus, even though Section 15(2) of the Act has been held to be not exhaustive by the Supreme Court, the qualification cannot be treated as sufficient under the State law unless the Degree in Occupational Therapy and Physiotherapy is included as a recognised medical qualification in the Schedule and the Occupational Therapists and Physiotherapists cannot be allowed to practise modern scientific medicines.
The said ruling is aptly applicable to the case hand hand, because, in this case, the PW 3 is only a Physiotherapist and she cannot 32 call herself as a Doctor and she cannot put prefix as Doctor in her name and as argued by the defence counsel she can be called as Paramedical Practitioner. Therefore, no value could be attached to the evidence of PW 3.
37. The learned counsel Sri.BRD submits that because of the evidence of PW 3 i.e., Arathi Prasad, this court has taken cognizance and issued summons to these accused. No doubt the evidence of PW 3 has been taken into consideration by this court to take cognizance, at that particular point of time, his evidence was little assistance to the court to arrive a conclusion that there is a prima facie case to proceed against the accused. The complainants in order to attribute negligence on part of the accused No.1, they should have examined some other doctor who is having a qualification of MBBS , MD in Gynecology and Obstetrician, no such attempt is made by the complainants, therefore, no value could be attached to the evidence of PW 3 to attribute negligence on part of the accused.
38. At this stage itself, let me discuss about the application filed by the accused u/s.200 of Cr.P.C., to take action against the PW 3 I..e, Arathi Prasad alleging that she has committed an offence punishable u/s.191, 193, 417, 418, 425, 469, 471 of IPC. In the application it is stated that PW 3 falsely and deliberately deposed as a Medical Practitioner, which has mislead the court to treat her medical expert witness. The court has treated her as an expert giving opinion on Gynecology and Obstetrician and had proceed to take cognizance sue 33 moto against the accused for the offence punishable u/s.322 and 338 of IPC. No doubt on the basis of the evidence of PW 3 i.e., Arathi Prasad, this court has taken cognizance and issued summons to the accused. Admittedly PW 3 Arathi Prasad is a well known Physiotherapist as suggested by the accused counsel. At the time of taking cognizance as per the ruling of Hon'ble Supreme Court in a Jacob Mathews case in case of Medical negligence, it is observed that a private complaint should not be entertained unless the complaint has produced prima facie evidence before the court in the form of a credible opinion by giving by another competent doctor to support the charge of rash or negligence on part of the accused doctor.
Thus, it is contended by Sri.SRD advocate since PW 3 is a Physiotherapist, she herself cannot be called as a doctor and she cannot give an opinion in the present case as an expert. It is true the scope of PW 3 is only a paramedical practitioner, she cannot give her opinion in respect of the work done by the accused No.1. It is pertinent to note that even the Physiotherapist used to call as a doctor by the patients to their convenience. Here, though the PW 3 is not having specialised qualification in Gynecology and Obstetrician, she can give opinion how the disability of complainant No.3 had occurred. At this stage, let me quote the important portion of her sworn statement :
"The problem, which the said child was suffering can be caused due to mishandling of the said child at the time of delivery by the doctor or 34 the person who attended the pregnant lady , such kind of problem would be crop up in cases of Forceps delivery. Since, for last 21 yrs, I am specialised in the field of Physiotherapy and I have come across the children with such problem occasionally.
On analise the said evidence in whole evidence, she herself called as Physiotherapist and she has given opinion as a Physiotherapist and not in the capacity of Gynecologist and Obstetrician. Infact she being a Physiotherapist, she can opine how that disability to complainant No.3 was caused. Merely because of that, the court cannot come to the conclusion that she has given false evidence to the court. At the time of taking cognizance, what is required is a prima facie case. Here, the court also considering that PW 3 Arathi Prasad as a Physiotherapist has given opinion and not as a Doctor, under such circumstances, the court cannot come to the conclusion that the PW 3 has given false evidence.
39. As discussed above, the Forceps delivery is not a surgery, it is one of the process of the delivery in a complication stage. Now the court has to consider is there is any chance of ERBSPALSY at the time of normal delivery or not. Some medical literature says that even at the time of normal delivery, ERBSPALSY would have occurred and the treatment has been 35 take within the prescribed time, it is a curable. When such is the situation, in the present case the complainant No.1 was capable of normal delivery and she was following all the instructions given by the accused No.1 who was present till delivery and when the baby come out from the womb and stuck in the pelvic outlet and at the same time, in a foetal monitor , the heart beat was coming down, naturally the accused NO.1 being a dutiful doctor having experience in order to overcome the danger to mother as well as baby, she has conducted Forceps delivery which is universally accepted one. Whatever the procedure adopted by the accused No.1 at that point of time is not correct has to be established by examining one more expert having similar qualification or more. Here, except the evidence of PW 3Physiotherapist, no other competent witnesses/expert witness has not been examined. Under such circumstances, absolute negligence cannot be attributed on the accused No.1.
40. The complainant counsel all along contended that the case of the complainant No.1 was a fit case for surgery. According to the accused No.1 the complainant No.1 was capable of normal delivery, accordingly, she was admitted to Brindavan Nursing Home and she was present till delivery. As per the accused No.1 baby come out from the womb and stuck in the pelvic outlet cannot be seen in any scanning but she can watch the status of the baby in a foetal monitor. Now the 36 complainant has to demonstrate before the court even the baby was stuck in the pelvic outlet a surgery can be conducted. It is the general opinion of the doctors and literature, when the baby stuck in the pelvic outlet no surgery can be conducted except Forceps delivery. Under such circumstances, whatever the procedure adopted by the accused No.1 is suitable to the situation and in order to safeguard the baby and mother.
41. The another point has to be established by the complainant that there was a mensrea. In fact to attract criminal offence, the element of mensrea must be shown to exist. Here, as admitted by both the parties the complainant No.1 was taking treatment from the accused No.1 and then she had a delivery pain on 5/8/03, she voluntarily admitted to Brindavan Nursing home running by the accused No.2 and then Nursing home management called the accused No.1 to attend the complainant No.1. Under such circumstances, the relationship between the accused No.1 and complainant No.1 is doctor and a patient. So, the complainant has to establish before this court that accused No.1 having criminal intention so as to conduct Forceps delivery and root cause for permanent disability to complainant No.3. At this stage, in cross examination of the DW 1 , a suggestion made to the witness by the complainant counsel suggesting the accused that, the complainants and accused No.1 are far relatives, same is denied by the witness and also suggested that there was no personal 37 illwill among them, same is admitted. Under such circumstances, the complainants have to establish criminal intention on part of the accused No.1. As stated above, the accused is not the relative of the complainants and there is no illwill among them, so question of enmity does not arise and criminal intention has not been established. Therefore, in a decision taken by the accused No.1 to do the Forceps under the compelling circumstances to safeguard the baby and mother and not otherwise, particularly no criminal intention.
42. The Hon'ble Supreme Court in the matter of Jacob Mathew v/s.State of Punjab and another reported in (2005) 6 SC page No.1 wherein in order to attract medical negligence on part of the doctor the following ingredients/guidelines has to be satisfied by the complainants :
1) Negligence is breach of a duty caused by omission to do something which a reasonable man guided by those consideration which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not to do. The definition of negligence as given in law of torts, Rathanlal and Dheeranlal, referred to hereinabove holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributed to the person sued. The essential components of negligence are three duty, breach and resulting 38 damage.
2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident is not proof of negligence on part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to the practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of a man has found to be sufficient : a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care while assessing the practice as adopted, is judged in the light of knowledge available at the time of incident, and not at the date of trial. Similarly, when the 39 charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of incident) at which it is suggested it should have been used.
3) A professional may be held liable for negligence on one of the two findings : either he was not possessed of the requisite skill which he possessed to have possessed, or he did not exercise , with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
4) The test for determining medical negligence as laid down in Bolam's case (1957) 1 W.L.R.582, 586 holds good in its applicability in India.
5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not 40 necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e., gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.
6) The word 'gross' has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be 'gross'. The expression 'rash or negligent act' as occurring in Section 304A of the IPC has to be read as qualified by the word 'grossly'.
7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.
8) Res Ipsa Loquitur is only a rule of evidence and operates in the domain of civil law specially in case of starts and helps in determining the owners of proof in actions relating to negligence. 41 It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res Ipsa Loquitur has, if at all, a limited application in trial on a charge of criminal negligence.
Now the court has to consider under the above guidelines of the Hon'ble Supreme Court, the complainant has proved their case. On analising the overall evidence of the complainant from the date of admission on 5/8/03 at about 4.00 am., till delivery the accused No.1 was all along present and provided all the medical aid to the complainant No.1. Further when a case has went to the critical stage, she being an expert doctor in the subject she decided to deliver the baby by way of Forceps and accordingly she did it. Nowhere the complainant established before the court Forceps is not a universally accepted procedure for delivery. Further, it is not the case of the complainant that the accused No.1 is not possessed requisite qualification/skills to do a practice of Gynecology and Obstetrician.
43. As discussed above, the only contention of the complainant is that the accused NO.1 instead of opting Cesarean she has opted for Forceps. In order to prove that aspect, except the evidence of PW 3 who is Physiotherapist, no other competent witnesses has been examined before the court. As per the say of accused No.1, when the complainant No.1 was ready for natural delivery and she was following all the 42 instructions given by her, when the baby come out from the womb and stuck in the pelvic outlet and at the same time heart beat of the baby was coming down, so, without any alternative in order to safeguard the life of mother and baby, she conducted Forceps delivery. Under such circumstances, the complainant has to examine the expert even at that time also, the surgery was possible. No such attempt is made by the complainant. Viewed from any angle, the complainant fails to establish negligence on the part of the accused No.1 and 2. Under such circumstances, the only inference can be drawn is under the above said critical condition in order to save the two lives, the accused No.1 has taken proper decision and one cannot find fault with the decision taken by accused No.1.
44. In the cross examination of DW 1 a suggestion made to the effect that purposefully she has not produced the medical records of complainant No.1 to suppress the real fact. The witness admitted that she has not produced the case sheet of complainant No.1. As admitted by the complainants, accused No.2 is running the Brindavan Nursing Home, wherein accused No.1 working as Gynecologist and Obstetrician. Further, in the very same cross examination the said Brindavan Nursing Home was closed in the year 2009 and again opened about 4 years ago. Under such circumstances, the complainants who have approached the court, they have to take necessary medical documents from the Brindavan Nursing Home and produce 43 before the court, because, they have to prove their case. Merely the accused No.1 has not produced the case sheet of the complainant No.1, it is no way helpful to the case of the complainants. Further, the complainants have not whispered that they have approached the Brindavan Nursing Home for the medical records of the complainant No.1 and same was refused to give, under such circumstances, the court could have draw some inference, but no such efforts made by the complainants even after evidence was started. Thus, on this ground, the defence of the accused cannot be disbelieved.
45. Now comes to the disability of the complainant No.3. No doubt by seeing the complainant No.3, she had a permanent disability to her left hand. No doubt it was caused at the time of delivery, but, the complainant fails to establish before this court because of the Forceps delivery the disability of complainant No.3 was caused. Further, a negligence is equally caste upon the complainant No.1 and 2 because, soon after the delivery, the accused No.1 referred the baby to Paediatrician, for the further treatment. Here, the complainant have not produced any material to show that after discharge from the Brindavan Nursing Home, what are all the follow up treatment, they have provided to the complainant No.3 . The complainant No.1 and 2 were contacted PW 3 i.e., Arathi Prasad, Physiotherapist after lapse of 5 months. According to the version of accused No.1 as well as the PW 3, if the proper treatment was taken within 44 reasonable time i.e., 10 to 15 days of delivery, definitely that disability would have been cured at the initial stage itself. Under such circumstances, accused No.1 and 2 are not responsible for the disability caused to complainant No.3. In this regard, the evidence of victim/ PW 4 is not helpful, because, she has taken those certificates very recently to produce before the court for the purpose of studies and getting benefit from the Government, those documents are not helpful to the complainant to prove the negligent act of the accused NO.1 and
2. Thus, the complainants have failed to prove the guilt against the accused No.1 and 2 beyond all reasonable doubts and the complainant have not proved and established the guidelines of the Hon'ble Supreme Court in Jacob Mathew case in the evidence. As discussed above, the accused No.1 and 2 have also not proved that PW 3 has given false evidence before the court in order to mislead the court. Accordingly, point No.1 and 2 answered in the Negative.
46. POINT NO.3 :
For the aforesaid reason and discussion, I proceed to pass the following:
ORDER Acting under section 255(1) of Cr.P.C. Accused No.1 and 2 are hereby acquitted for the offence punishable 45 U/s.338 of IPC. They are set at liberty.The bail bond executed by the accused No.1 and 2
stands cancelled. However, Accused shall execute personal bond of Rs.50,000/ each by undertaking to appear before the appellate Court, if any appeal is filed. It is not a fit case to award victim compensation as provided U/s.357(1) of Cr.P.C.The application filed by the accused No.1 and 2
u/s.200 of Cr.P.C., to take action against the PW 3 Arathi Prasad for having committed offence punishable u/s. 191, 193, 417, 418, 425, 469, 471 of IPC is hereby dismissed.
(Dictated to the stenographer, script transcribed by her and then corrected directly on computer and then pronounced by me in open court on this the 28th of May 2020).
(Balagopalakrishna) XXIV A.C.M.M., BENGALURU.
ANNEXURE Witnesses examined for the Prosecution:
PW1 : Prashanth.H.G
PW2 : Deepa Prashanth
PW3 : Arathi Prasad
PW4 : Pragathi
Documents marked for the Prosecution:
Ex.P1 : Antenatal record
Ex.P2 : Baby card
46
Ex.P.3 : Admission receipt
Ex.P4 : Discharge summary
Ex.P.5 : ENMG report
Ex.P.613 : Photos
Ex.P.14 : Negatives
Ex.P.15 : Disability certificate of the complainant No.3
Ex.P.16 : Disability certificate (wrongly marked as Ex.P.14)
Materials marked for the Prosecution: NIL
Witnesses examined for the accused:
DW 1 Dr.Rajalakshmi
Documents marked for the accused:
Ex.D.1 Document confronted to PW 2 in her cross examination
(Balagopalakrishna)
XXIV A.C.M.M., BENGALURU.