Delhi District Court
State vs . Dr. Anil Kumar Aggarwal on 17 April, 2018
IN THE COURT OF Ms. SHILPI JAIN
METROPOLITAN MAGISTRATE-01(CENTRAL),
TIS HAZARI COURTS, DELHI - 110054
FIR No.257/96
PS Prasad Nagar
State Vs. Dr. Anil Kumar Aggarwal
U/s 304-A IPC
Unique Case ID No.290729/16
JUDGMENT
(a) Sr. No. of the Case 290729/16
(b) Date of offence 19.09.1996
(c) Complainant
Hardwari Lal, S/o Sh. Tilak Ram, R/o. House No.
16/696-H, Military Road, Bapa Nagar, Delhi.
(d) Accused Dr. Anil Kumar, S/o. Matu Ram, R/o House No.
5/11779, Sat Nagar, Karol Bagh, Delhi.
(e) Offence 304A IPC
(f) Plea of accused Pleaded Not guilty
(g) Final Order Acquitted
(h) Date of Institution 15.01.1998
(i) Date when judgment was 17.04.2018
reserved
(j) Date of judgment 17.04.2018
FIR No. 257/96 PS Prasad Nagar State Vs. Dr. Anil Kumar Aggarwal Page No.1 of 20
BRIEF FACTS AND REASONS FOR SUCH DECISION:-
1. The present FIR was registered at PS Prasad Nagar against accused Dr. Anil Kumar Aggarwal for the offence U/s 304-A IPC.
2. It is the case of the prosecution that on 19.09.1996, accused negligently treated Smt. Vimla Rani and gave injection due to which negligence she expired and thereby accused committed an offence under Section 304-A IPC.
3. After completion of the investigation, charge-sheet was filed by the police in the Court and the copy of the charge sheet and annexed documents were supplied to accused Dr. Anil Kumar Aggarwal in compliance of Section 207 Cr.P.C. Thereafter, charge under Section 304-A IPC was framed against the accused by the Ld. Predecessor of this court vide order dated 08.10.1998 to which he pleaded not guilty and claimed trial.
4. Thereafter, matter was fixed for PE.
PROSECUTION EVIDENCE
5. In order to prove the guilt of the accused, prosecution examined as many as 13 witnesses.
6. PW-1 is Rattan Lal Kin, who deposed that on 26.09.1996 and 27.09.1996, he identified the dead body of Smt. Vimla who is her sister in law and after the Postmortem the dead body of the deceased was handed over to her husband Mr. Hardwari Lal on 27.09.1996. Identification memo of the dead body is Ex. PW-1/A.
7. PW-2 is P.K. Dass, CMO, RML Hospital, who deposed that on 25.09.1996, he was posted as CMO R.M.L. Hospital and examined and FIR No. 257/96 PS Prasad Nagar State Vs. Dr. Anil Kumar Aggarwal Page No.2 of 20 prepared MLC of Vimla Devi on 25.9.1996, that she was admitted in hospital on 21.09.1996 and expired on 25.09.1996, that she prepared the MLC on the request of the IO of this case, that MLC is Ex. PW-2/A, that the wordings of the MLC as follows: Patient brought dead on 25.09.1996 at 7:00 pm to the casualty department as per instruction of Additional Medical Superintendent against the application of IO of the PS Prasad Nagar, that patient was received on Saraswati Memorial Hospital on 21.09.1996 as a case of swelling of left arm and was admitted at Surgical Unit under Dr. S. Paul vide CR No. 32037 on 21.09.1996, that amputation of left arm left scapula and half of the left clavicle done on 23.09.1996 due to gas gangrene, that patient expired on 25.09.1996 at 9:50 am in the ward.
8. In the cross examination, he admitted that no MLC was prepared regarding amputation on 23.09.1996. He deposed that first time, he only prepared the MLC, he again said that it is not regular practice to prepare MLC after amputation of any part of the body.
9. PW-3 is Hardwari Lal, who deposed that he reside at the above said address, that he is a Central Assistant in MC, that since 14.09.1996 to 20.09.1996 his wife Vimla Rani was suffering from fever and she was under the treatment of Dr. A.K. Aggarwal and on 14.09.1996 she was given one injection by the doctor and also provided some medicines and further on 19.09.1996, Dr. Aggarwal gave her two injection one in the buttal and one on the left hand, that next day, his wife complained about some swelling and pain in her left hand where doctor has given injection then on 20.09.1996, he again visited Dr. Aggrwal clinic he gave some medicine for the fever and when they complaint about swelling and pain in the left arm he said there is nothing to worry it is due to injection "IS PER SAKE LAGO" and swelling will disappear and no medicine was provided for that soling in the left hand but the soiling and pain was increasing and his wife was very puzzled in the night in the morning of 21.09.1996 the left arm became bluish so he again visited Dr. Aggarwal's clinic in the morning hours and reiterated about the swelling and pain in FIR No. 257/96 PS Prasad Nagar State Vs. Dr. Anil Kumar Aggarwal Page No.3 of 20 the arm, that after, seeing his wife Dr. Aggarwal said that the case has became very serious and he should go in some big Government Hospital and get treatment there, that he has also provided his slip of the treatment for consulting other doctor, that on the same day at about 12:00 noon, he went to RML Hospital in emergency where they have just given a casual look to the patient and provided some medicine, that they came back to their home but as there was no relief and at about 1:30 pm the clinic of Dr. Anil Aggarwal was closed and his eveing hours from 6:00 pm, so he went to Saraswati Memorial Hospital a nearby Nursing Home, that his wife was examined there and they told him that it is a serious case and they referred him to RML Hospital, that he again went to RML Hospital and on the basis of slip given by the doctor on duty at Saraswati Memorial Hospital his wife was admitted in RML Hospital, that a team of doctors visited his wife and they told him that there is infection caused by injection administered in the Arms they have to remove the arm and thereafter, a small operation was conducted on the arm of his wife and to stop further infection on 23.09.1996 whole arm of his wife was amputated as the doctors have told him at the time of admission that it is a case of serious gas gangrene and chances of survival are very less, one out of lakhs of such patient survives and on 25.9.1996, his wife expired, that the accused was very negligent while treating his wife and he has not used disposable syringe and further he has not informed him on the evening of 20th or in the morning of 21st when he came to know about the seriousness of the case, that he has made his complaint to the police same is Ex. PW-3/A, that on 26.09.1996, he has identified the dead body of his wife Vimla,that he identified the dead body of his wife Vimla at Maulana Azad Medical College and he has received the dead body after postmortem, that complaint given by him on 24.09.1996 at PS Prasad Nagar is Ex. PW-3/B.
10. In the cross examination, he deposed that he stated to the police while his statement was recorded that on 20.09.1996 Dr. has told him that don't worry about the swelling or pain 'SAIK LAGAO THIKH HO JAAYEGA' but he do not know whether the same was recorded by the IO. He was FIR No. 257/96 PS Prasad Nagar State Vs. Dr. Anil Kumar Aggarwal Page No.4 of 20 confronted with his statement where it is not so recorded. He denied that Doctor of Saraswati Memorial Hospital has not told to him that the matter has become serious and it is a case of gas gangrene, that doctor at that hospital simply stated that they may approach any big government hospital. He again said that if the matter would have not been serious the doctor would not have advised him to go to big government hospital. He deposed that he told to the IO while recording his statement that before operation doctor at RML Hospital has informed him that it is a serious case of gas gangrene and one out of the lakhs of such patient survives but he do not know whether the same recorded by the IO or not. He was again confronted with the statement where it is not so recorded. He further deposed that the complaint given by him on 24.09.1996 Ex. PW- 3/B was prior to the death of his wife and that's a very short complaint in which he has not stated that accused has not used the disposable syringe. He further deposed that his office hours were from 12:00 noon to 7:30 pm, that he had taken his wife to clinic of the accused in between 8:00 to 9:00 pm, that his wife was under a regular supervision of Dr. Anil Aggarwal from 14.09.1996 to 20.09.1996 and he has mentioned in his examination in chief date 14.09.1996 and 19.09.1996 when she was administered with the injection. He admitted that there was no serious complaint upto 19.09.1996 except fever. He deposed that he knew the accused around 2 years prior to the incident. He admitted that his family members used to visit Dr. Aggarwal for treatment, that there was no complaint regarding the treatment of Dr. Aggarwal prior to this incident. He denied that his wife was a diabetic patient, that he has not visited the accused Dr. Aggarwal for treatment of his wife on 19.09.1996 and 20.09.1996. He admitted that accused has advised him to go to some big government hospital with his prescription. He further deposed that he took his wife to the Saraswati Memorial Hospital at 6:00 pm and from there they reached at RML Hospital between 7:00 pm to 8:00 pm, that he do not remember the exact time taken by the doctors of Saraswati Memorial Hospital but they remained there for about half an hour as there were 10/12 patient in the hospital. He denied that after 14.09.1996, he has visited the accused on 21.09.1996, that he do not remember that on FIR No. 257/96 PS Prasad Nagar State Vs. Dr. Anil Kumar Aggarwal Page No.5 of 20 14.09.1996 whether accused used disposable syringe or not but on 19.09.1996 he has not used disposable syringe, that his statement Ex. PW-3/A was recorded at RML Hospital on 25.09.1996, that exact time he do not remember but it was in the evening hours. He denied that being the husband of the deceased he is deposing falsely, that the accused was not negligent.
11. PW-4 is ASI Ram Kishan, who proved the registration of present FIR as Ex. PW-4/A.
12. PW-5 is Smt. Shushila Devi, who deposed that on 19.09.1996, she along with her ill-sister in law Vimla went to doctor Anil Aggarwal's clinic which was at Bapa Nagar, that Vimla was suffering from fever, that doctor Anil Aggarwal administered two injections to Vimla one at the heap and one at the left shoulder, that in the night Vimla felt some pain on her left shoulder where the injection was administered and there was some swelling also, that next day they again went to the clinic of accused Anil Aggarwal and complained about the swelling and pain in the shoulder where the injection was administered, that Dr. Anil Aggarwal replied that the injection was hard one and it will be OK with the passage of time, that on 21.09.1996 the condition of the shoulder of Vimla deteriorated so they again visited the clinic of doctor Anil Aggarwal, thereafter, Dr. Anil Aggarwal replied to shift her to some other hospital, that thereafter, they shifted the Vimla to Saraswati Memorial Hospital and from there they shifted her to RML (Willingdon Hospital), that at the RML hospital on 23.09.1996 the left arms of Vimla was amputated (cut down) because of the infection of injection administered by Dr. Anil Aggarwal and because of the reasons of infection in whole body even after amputation of arm of his sister in law Vimla expired on 215.09.1996 at RML Hospital , that the death of Vimla was due to the infected injection as the same not boiled properly before administration of injection as he took the injection lying there and administered the same in their presence without boiling, that the injection was made of glass and was not a disposal syringe.
FIR No. 257/96 PS Prasad Nagar State Vs. Dr. Anil Kumar Aggarwal Page No.6 of 20
13. In the cross examination she deposed that the Vimla fell ill because of fever on 18.09.1996 and she was taken to the clinic of the accused on 19.09.1996 before that she was not taken to the clinic of accused for treatment of fever. She admitted that accused was their family doctor and they never faced any problem before this incident. She further deposed that she along with her brother in law went to the clinic of the accused on 19.09.1996 for the treatment of Vimla, that they reached at the the clinic at about 7:00 pm, that there was no other patient at that time inside the clinic, that they took Vimla to Saraswati memorial hospital after the advise given by accused Dr. Anil Kumar Aggarwal, that she visited the clinic of the doctor along with Vimla on 20.09.1996 and 21.09.1996 after their first visit on 19.09.1996. She was confronted with her statement where these facts are not mentioned. She deposed that they took the deceased Vimla to Saraswati Memorial Hospital at about 11:00 am or 12:00 noon on 21.09.1996, that they remained at the Saraswati hospital for five minuets as the the doctor advised them to shift Vimla to some other hospital, that she cannot tell the name and the designation of the doctor who had given this advise at Saraswati hospital, that they reached RML Hospital at about 1:00 pm or 1:30 pm by a three-wheeler. She denied that the Vimla was shifted to RML Hospital by the ambulance of Saraswati Memorial Hospital. She further deposed that there was no domestic treatment or not treatment was given to Vimla by the family members at their own. She admitted that she is having no medical knowledge, that the Vimla was admitted in the RML hospital in the evening hours on 21.09.1996 after some checkup and laboratories test. She further deposed that from RML Hospital Vimla never came at their residence alive on 21.09.1996, that her statement was recorded by the police at her residence, that it was recorded on 26/27.09.1997, that she had stated that the death of Vimla was due to infected injection as the same was not boiled properly before administration as he took the injection lying there and administered the same without boiling to the IO but she cannot say whether he had recorded it or not. She was again confronted with the statement Ex. PW-5/DA where these facts are not mentioned. She further deposed that injections are of two types first that FIR No. 257/96 PS Prasad Nagar State Vs. Dr. Anil Kumar Aggarwal Page No.7 of 20 of glass used at the time of this incident and one of disposable plastic syringe, that she had not stated to the police that the injection was made of glass but she had stated that the syringe used was not a disposable syringe, that she do not remember that Vimla was admitted in which ward and who (doctor) attended her at the hospital, that she was in I.C.U and as far as she remember the I.C.U is situated on the first floor. She denied that she did not visit doctor Anil Aggarwal clinic on 19,20 or 21.09.1996, that Vimla deceased was not taken to the clinic of accused on 14.09.1996 by anyone in their family. She deposed that she is remembering the above said dates as the death of their family member was a big incident in their family, that she can tell the months on which Holi and Deewali festival in the year 1999 but she cannot tell the exact date. She denied that she is deposing falsely due to deceased being her relative. She further deposed that nobody has read over to her statement recorded under Section 161 Cr.P.C.
14. PW-6 is Ct. Lakhpat, who deposed that on 25.09.1996, he was posted at PS Prasad Nagar, that on that day, he has joined the investigation with SI Babbar Khan and SI Attar Singh and went to RML Hospital, where they met with one person Hardwari whose wife namely Vimla was stated to be expired, that statement of Hardwari Lal recorded by IO and rukka was prepared and he was sent to police station, that he came back at the hospital, that site plan was prepared.
15. In the cross examination he deposed that they left the PS at 1:30 pm and reached at hospital at 2:00 pm, that DD was made by SI Attar Singh in the Rojnamacha but he cannot tell the DD No., that they reached hospital on the two wheeler scooter of IO, that he remained in the PS till 2:45 pm, when he took the rukka for registration of case, that he reached at PS at 3:25 pm, that he came back on the spot at about 5:25 pm. He denied that he is deposing falsely and did not took rukka as deposed.
16. PW-7 is Ct. Krishan Pal, who deposed that on 10.10.1996, he was posted at PS Prasad Nagar, that on that day on the direction of IO he had taken the viscera of this case from MAM college mortuary of the FIR No. 257/96 PS Prasad Nagar State Vs. Dr. Anil Kumar Aggarwal Page No.8 of 20 deceased in a wooden box and which was sealed and handed over to IO/SI Attar Singh which was taken into possession vide memo Ex. PW- 7/A.
17. In the cross examination he deposed that he left the PS for MAM College at about 9:30 am and reached there at about 10:00 am, that he do not know whether any departure entry was made or not, so he cannot tell the DD number, that he do not know from whom he received the viscera and he cannot tell his name and designation, that he reached in the police station along with Viscera in the malkhana, that the said viscera was sealed with the seal of MAM College Forensic Medicine, that he cannot tell the number of seal, that the viscera was put into a cloth parcel, that the size of the box was 1'x1' approximately, that he cannot tell the particulars which were mentioned in the viscera pullanda.
18. PW-8 is SI Babbar Bhan, who deposed that on 10.10.1996, he was posted at PS Prasad nagar and on that day Ct. Krishan had obtained the viscera of the case from MAM College Mortuary on the deceased which was having seal of MAM College Forensic Medicine and which handed over by Ct. Krishan to SI Attar Singh vide Ex. PW-7/A, the PM report which was sealed in a envelope was also handed over to Ct. Krishan Kumar were also taken into possession Ex. PW-8/A which was handed over on 02.01.1997.
19. In the cross examination he deposed that he had never investigate the case, that his statement was recorded by the IO. He admitted that in his statement recorded by the IO he had not stated that PM report was handed over to IO in his presence. He deposed that he do not remember the exact time when the viscera was handed over to IO in his presence and he is deposing falsely.
20. PW-9 is ASI Balbir Singh, who deposed that on 1.10.1996, he was posted at PS Prasad nagar, that on that day, he was working as MHC(M) and SI Attar Singh deposited one wooden box containing viscera of Smt. FIR No. 257/96 PS Prasad Nagar State Vs. Dr. Anil Kumar Aggarwal Page No.9 of 20 Vimla Devi in sealed condition sealed with the seal of MAM College, New Delhi, that he made entry to this effect at S. No. 1206 in register no. 19, that on 02.01.1997, SI Attar Singh deposited one sealed envelope with the seal of MAM College, New Delhi, that he made entry to this effect at S. No. 814 in register no. 19, that on 23.09.1997, he send the aforesaid sealed envelope and wooden box through HC Vijay Pal to CFSL Calcutta vide RC No. 133/21 tilln the above said sealed envelope and wooden box remained with him the same were not tampered, that he has brought the register no. 19 containing the aforesaid entries, same are Ex. PW-9/A, Ex. PW-9/B and Ex. PW-9/C.
21. In the cross examination he admitted that SI Attar Singh has not signed on Ex. PW-9/C, that same is his answer for Ex. PW-9/B. He denied that samples were tempered with before they were sent to CFSL.
22. PW-10 is ASI Vijay, who deposed that on 23.03.1997, he was posted at PS Prasad Nagar and on that day MHC(M) handed over one wooden box and one envelope and in sealed condition with the seal of MAM College and one sample seal vide RC No. 133/21, which he deposited at CFSL, Calcutta on 26.03.1997, that as long as case property along with the seal remained with him, it was not tempered. He further deposed that on 15.12.1997, he again went to CFSL Calcutta to collect the results, however the same were not ready till then.
23. In the cross examination he deposed that he do not know the name or designation of the official at CFSL Calcutta whom he had handed over the case property i.e. one wooden box, one sealed envelop and the sample seal, that the did not go to collect the result of the exhibits after 15.12.1997 and he do not know the results. He denied that he had not delivered the samples of the exhibits to CFSL, Calcutta on 26.03.1997, that he is deposing falsely.
24. PW-11 is Jaswant Singh, who deposed that he was working in RML Hospital as Record Clerk since 1977, that he has seen Dr. G.S. Prasana FIR No. 257/96 PS Prasad Nagar State Vs. Dr. Anil Kumar Aggarwal Page No.10 of 20 signing and writing in his ordinary course of duty, that he has left the hospital 5/6 years back and his present whereabouts are not known, that he identified the signature of said doctor at Ex. PW-11/A bears the signature of Dr. G.S. Prasana at point A.
25. In the cross examination he admitted that Ex. PW-11/A was not prepared in his presence. He deposed that death form might have been prepared on 27.09.1996. He admitted the doctor who leaves the hospital, his address is being kept at administrative branch. He denied that he is deposing falsely.
26. Inspector Attar Singh also examined as PW-11, who deposed that on 24.09.1996, a complaint of Sh. Hardwari Lal alleging negligence of Dr. Anil Kumar Aggarwal in treating his wife was received in PS Prasad Nagar which was marked to him by the then SHO Inspector Ishwar Singh, that on 25.09.1996, he along with SI Babbar Bhan and Ct. Lakhpat Singh departed from police station for RML Hospital where wife of Hardwari Lal had died on the same day, that he met Hardwari Lal and recorded his statement, that he made his endorsement upon said statement prepared rukka which is Ex. PW-3/A, that he sent said rukka through Ct. Lakhpat Singh at about 2:45 pm for registration of FIR, that he recorded the statement of Smt. Sushila Devi, sister in law of Hardwari Lal under Section 161 Cr.P.C, that he moved an application before Ved Bhushan, Additional Deputy Medical Superintendent for preparation of MLC and death summary of deceased Vimla Rani, that he obtained MLC of deceased and he along with complainant Hardwari Lal and staff departed from RML Hospital for clinic of Dr. Anil Kumar Aggrwal, that they reached at said clinic situated at House No. 16/242, I, Bapa nagar, search of said clinic was made, that site plan Ex. PW-11/A was prepared, that Hardwari Lal handed over a prescription slip Ex. PW-11/B of Dr. Anil Kumar Aggarwal dated 14.09.1996 which was seized, that Dr. Anil Kumar Aggarwal was formally arrested in the present case, that personal search of accused was conducted, that Dr. Anil Kumar Aggarwal handed over another prescription slip of deceased Vimla which is Ex. PW-11/C, that FIR No. 257/96 PS Prasad Nagar State Vs. Dr. Anil Kumar Aggarwal Page No.11 of 20 he obtained requisite papers of deceased Vimla from RML Hospital i.e. MLC, Death Summary etc., that postmortem of deceased was conducted in MAM College on 27.09.1996 and body was handed over to husband of the deceased, that during investigation Postmortem Report was collected which is mark PW-11/D, that during investigation he recorded statement of PWs, that viscera of the deceased i.e. a sealed box with the seal of MAM College and sample seal was collected from MAM College and same was seized vide seizure memo which is Ex. PW-7/A, that seizure memo regarding postmortem report is Ex. PW-8/A, that on 23.03.1997, viscera of the deceased was got deposited in CFSL, Calcutta through HC Vijay Pal Singh vide RC No. 133/21, that on his transfer from PS Prasad Nagar, he handed over case file to MHC(R) on 13.06.1997.
27. In the cross examination, he deposed that investigation of the present case was taken up by him on 25.09.1996. It is admitted that in this case an application was made by the complainant Hardwari to SHO and the same was marked to him in the evening of 24.09.1996 for investigation, that no FIR was lodged on 24.09.1996, that complainant Hardwari did not mention the fact about using of disposable syringe by Dr. Anil Kumar Aggarwal, that Hardwari Lal had also taken his wife to Saraswati Memorial Hospital after taking treatment from Dr. Anil Kumar Aggrwal. He deposed that he did not record statement of any doctor of said hospital, that he did not obtain any medical record from Saraswati Memorial Hospital, that he had obtained all relevant documents i.e. MLC, death summary of deceased from RML Hospital. He admitted that initially MLC was not prepared of deceased Vimla Devi in this case and at the request later on MLC was prepared. He deposed that he did not record statement of Doctor of RML Hospital but Dr. Ved Bhushan who had prepared MLC and other relevant documents had been cited as witness in the list of witnesses. He denied that Slip of Dr. A.K. Aggarwal Ex. PW-11/C was handed over to him by the complainant. He voluntarily deposed that it was handed over to him by the accused. He denied that no fair investigation was carried by him in this case, that he had added and subtracted the statement of witnesses to make out the false case against FIR No. 257/96 PS Prasad Nagar State Vs. Dr. Anil Kumar Aggarwal Page No.12 of 20 the accused, that he is deposing falsely.
28. PW-12 is Dr. Anil Kumar, who deposed that on 27.09.1996, he conducted postmortem on the body of Smt. Vimla Rani, W/o. Hardwari Lal at MAMC New Delhi, that the body was brought by SI Attar Singh of PS Prasad Nagar, that the body was identified by Hardwari Lal (husband) and Ratan Lal (Jeth), that the opinion given as follows:- "No definite opinion could be given regarding the cause of death at that stage as Viscera were preserved and sealed and handed over to the police for chemical analysis". The detailed report given by him is Ex. PW-11/D. He further deposed that he has gone through the viscera report no. CFSL/EE/97 (DEL)-366 dated 04.091998 Ex. PW-12/A, that the report shows 'detected chlorpromaznine hydrochloride (a medicine) in the content of the exhibit mark as 230/1 and 230/2, that chlorpromazine hydrochloride (a medicine) or other poison was not detected in the exhibit mark as 230/3'. He further deposed that he has also gone through the death summary dated 25.09.1996 ex. PW-12/B, which shows that patient had gas gangrene of left arm at the time of admission and the patient was in shock, that the patient was resuscitated (commonly known as part of shock treatment) and left four quadrant amputation was done but the patient still did not improve, that postmortem report is Ex. PW-11/D and the inquest papers which includes death report Ex. PW-11/D and death summary dated 25.09.1996 is ex. PW-12/B, that he is of the opinion that the death in this case was became of septicemia due to infection present in the body of the deceased. He further deposed that the cause of death is septicemia which means wide spread infection in the body of the deceased, that it could be possible in this as a result of development of gas gangrene which as per the death summary had developed in the left arm of the deceased for which the amputation of the left arm of the deceased was done, that gas gangrene could have been possible as a result of injection which could have been given on the left arm of the deceased. It is put to the witness, whether gangrene can develop due to administration of injection by unsterilized syringe, to which he replied yes.
FIR No. 257/96 PS Prasad Nagar State Vs. Dr. Anil Kumar Aggarwal Page No.13 of 20
29. In the cross examination he deposed that when the patient was admitted in RML Hospital, he has not examined her and nor amputated her left arm. He admitted that Chlorpromazine hydrochloride is a medicine and not a poison. He deposed that gangrene can be caused by other reasons too, however, he reiterate that in the present facts and circumstances, injection administered to the deceased could have caused gangrene and due to the same, infection developed in the body and amputation of arm had to be done and further deceased died due septicemia, that since he has not treated the patient, hence he could tell what medicine for injection administered to the deceased.
30. Thereafter, PE was closed and matter was fixed for SA. Statement of the accused Dr. Anil Kumar under Section 313 Cr.PC was recorded vide order dated 20.09.2011 by Ld. Predecessor by putting entire incriminating evidence to the accused. Thereafter, Additional statement of accused Dr. Anil Kumar under Section 313 Cr.P.C was also recorded vide order dated 29.02.2012 passed by Ld. Predecessor. Accused denied the allegations against him and stated that he has been falsely implicated in the present case. Accused did not chose to led DE, therefore, DE was closed and the matter was fixed for final arguments.
31. Final argument heard on behalf of defence counsel as well as State and record perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS AND FINDINGS:
32. Perusal of the record reveals that accused Dr. Anil Kumar Aggarwal was charged with the offence under Section 304-A IPC.
33. Section 304-A IPC stipulates that:-
"Causing death by negligence- whoever causes the death of any person by doing any rash or negligent act not amounting to FIR No. 257/96 PS Prasad Nagar State Vs. Dr. Anil Kumar Aggarwal Page No.14 of 20 culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both".
34. It is the case of the prosecution that on 19.09.1996, accused negligently treated deceased Smt. Vimla Rani and gave injections negligently, due to which she expired and thereby accused committed an offence under Section 304-A IPC.
35. PW-2 is Dr. P.K. Dass, CMO RML Hospital, who categorically deposed the wordings of MLC as patient brought dead on 25.09.1996, at 7:00 pm to the Casualty Department and MLC was prepared at the request of the IO. He further deposed that patient was received on Saraswati Memorial Hospital on 21.09.1996 as a case of swelling of left arm and was admitted at Surgical Unit under Dr. S. Kaul. He further deposed that amputation of left arm was done on 23.09.1996 due gas gangrene and patient expired on 25.09.1996 at 9:50 am. During cross examination this witness categorically admitted that no MLC was prepared regarding the amputation on 23.9.1996 and for the first time dead body of the deceased was examined on 25.09.1996. He further deposed that it is not a regular practice to prepare MLC after amputation of the part of the body. Considering the aforesaid delay in the preparation of MLC as well as the fact that MLC was prepared after an amputation which is not done in regular course, genuineness of the MLC in question is highly doubtful.
36. PW-3 Hardwari Lal, husband of deceased deposed in his examination in chief that on 14.09.1996 and on 19.09.1996 his deceased wife was examined by the accused who gave her two injections. He nowhere deposed that injections were given to his wife were not boiled or sterilized at the stage of examination in chief. He has also not deposed that doctor had treated his deceased wife negligently on 19.09.1996 in his initial examination in chief. He only deposed that when he got the treatment from Sarawsati Memorial Hospital, it came to his knowledge that there is FIR No. 257/96 PS Prasad Nagar State Vs. Dr. Anil Kumar Aggarwal Page No.15 of 20 problem of gas gangrene in the left arm of deceased and team of doctors in the RML hospital told him that infection was caused by the injection administered in the arm. Therefore, it is only thereafter, that he doubted upon the treatment of accused and put allegations of negligence and not using disposable syringe on the accused.
37. In the cross examination, PW-3 deposed that he has stated to the police in his statement that on 20.09.1996 accused told him to not to worry about the swelling and pain, however, he was confronted with his statement wherein it is not so recorded, thereby reflecting material improvement in the testimony of PW-3. He further deposed that he has told to the IO that before operation doctors at RML Hospital informed him that it is a serious case of gas gangrene and one out of lakhs of such patient survives. Again he was confronted with his statement recorded by the police, wherein it is not so mentioned which again gives an inference that there is material improvement in the testimony of PW-3 regarding the medical condition of deceased. He further admitted that he has not stated in his complaint Ex. PW-3/B given on 24.09.1996 that accused has not used disposable syringe, which gives an inference that the possibility of subsequent improvement in the allegations levelled against the accused cannot be ruled out.
38. PW-3 denied the suggestion given by Ld. Counsel for the accused that his wife was diabetic patient in the cross examination which reflects that accused has taken defence that deceased was suffering from diabetes and the said fact has not been surfaced in the entire prosecution version and there is no investigation on the point whether deceased was diabetic or not. It is pertinent to note that administering unsterilized injections will result into gas gangrening when the patient is suffering diabetes and it will not result in development of gas gangrening in all the cases. Furthermore, administering unsterilized injections will not necessarily result in amputation of body parts and consequent death in all circumstances.
FIR No. 257/96 PS Prasad Nagar State Vs. Dr. Anil Kumar Aggarwal Page No.16 of 20
39. PW-5 Smt. Sushila Devi, deposed that deceased has expired as the injection was not properly boiled, however, in the cross examination she categorically admitted that the accused was their family doctor and they never faced any problem prior to incident in question. Further, PW-5 categorically admitted in her cross examination that she do not have any medical knowledge, therefore, her testimony cannot form basis for proving the act of negligence of a doctor while treating his patient
40. PW-5 deposed that she visited the doctor on 20.09.1996 and 21.09.1996 after their first visit on 19.09.1996, however, she was confronted with her statement recorded under Section 161 Cr.P.C wherein it is not so recorded. She further deposed that she stated to the police officials that death of Vimla occurred due to infected injection as the same was not boiled properly before administration,whereupon she was confronted with her statement Ex. PW-5/D-A wherein these facts are not mentioned, thereby giving an inference that it is a material improvement in the testimony.
41. PW-11 Inspector Attar Singh, IO of the case also admitted that complainant/PW-3 Hardwari Lal did not mention the fact of use of disposable syringe by accused. He also admitted that PW-3 has taken his wife to Saraswati Memorial Hospital after taking treatment from accused and he did not record statement of any of the doctor from the said hospital, which reflects bad investigation. He categorically deposed in the cross examination that he did not obtain any medical record from Saraswati Memorial Hospital which again give an inference that investigation was not done properly. He further admitted that initially MLC of deceased Vimla Devi was not prepared and it was prepared later on at the request which raises doubt about the correctness of the MLC. He further deposed that he did not record the statement of doctor of RML Hospital which again reflects the bad investigation by the police officials as surgery and amputation was done at RML hospital only.
42. PW-12 Dr. Anil Kumar, categorically deposed in his cross examination FIR No. 257/96 PS Prasad Nagar State Vs. Dr. Anil Kumar Aggarwal Page No.17 of 20 deposed that gas gangrening can be caused by other reasons too and since he has not treated the patient, he cannot tell what medicine for injection was administered to the deceased. Aforesaid testimony gives an inference that even PW-12 who is a doctor by profession cannot say beyond reasonable doubt that the deceased has expired due to the negligence of accused.
43. Furthermore, it is an admitted fact that after the treatment given by accused, deceased was taken for the treatment to Saraswati Memorial Hospital and she was also treated and operated upon in the RML Hospital by different doctors and she expired thereafter. Therefore, possibility of negligence in the subsequent treatment of the deceased cannot be ruled out and it cannot be held beyond reasonable doubt that death of the deceased was the direct and proximate result of treatment given by the accused only. To impose criminal liability under Section 304- A Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another's negligence. It must bear causa causans: It is not enough that it may have been the causa sine qua non. In the present case admittedly there is intervention of other doctors also who treated the deceased.
44. The essential components of negligence are three i.e. 'duty', 'breach' and 'resulting damage'. Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of the professional, in particular a doctor, additional consideration apply. A simple lack of care, an error of judgment or an accident, is not a prove of negligence on the part of 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 have not chosen to follow or resort to that practice or procedure which the accused followed. The jurisprudential concept of negligence differs in Civil Law FIR No. 257/96 PS Prasad Nagar State Vs. Dr. Anil Kumar Aggarwal Page No.18 of 20 and Criminal Law what may be negligence in Civil Law may not 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 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 basis of prosecution. In Civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in Criminal Proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as the reasonable man beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. No sensible professional would intentionally commit and act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake, more so in the present case when the family members of the deceased were his regular patients and admittedly accused was a family doctor of the deceased's family. It is also pertinent to note that PW-5 categorically admitted in her testimony that accused was their family doctor and they never faced any problem prior to the incident in question.
45. The doctor is not criminally responsible for a patient's death unless his negligence or incompetence went beyond a mere matter of compensation between subjects and showed such disregard for life and safety of others as to amount to a crime against the State.
46. In view of the aforesaid facts and circumstances, appreciation of evidence, testimony of PWs suffering various lacunas, contradictions and improvements, bad investigation which is not reliable to prove the case of prosecution and absence of gross negligence on the part of accused, prosecution has failed to establish its case against the accused Dr. Anil Kumar beyond reasonable doubt and accordingly benefit of doubt goes to FIR No. 257/96 PS Prasad Nagar State Vs. Dr. Anil Kumar Aggarwal Page No.19 of 20 the credit of the accused and therefore, accused Dr. Anil Kumar Aggarwal stands acquitted of the offences under Section 304-A IPC accordingly.
47. Necessary BB with surety along with latest passport size photograph and residence proof furnished in compliance of Section 437 A CrPC. Same is accepted for a period of six months from today.
48. File be consigned to the record room after due compliance.
49. Issue notice LRs of the deceased to appear before DLSA, Central on 24.04.2018 for the purpose of compensation as per mandate of judgment passed by Hon'ble High Court in Satya Prakash's Vs. State : 203 (2013) DLT 652.
50. Ahlmad is directed to send the ordersheet/proceedings to DLSA (Central) complete in all respect for necessary compliance for 24.04.2018.
Pronounced and Signed
SHILPI Digitally signed
by SHILPI JAIN
in the Open Court on 17.04.2018 JAIN Date: 2018.04.17
16:13:14 +0530
(Shilpi Jain)
MM-01(Central)/THC/Delhi
17.04.2018
FIR No. 257/96 PS Prasad Nagar State Vs. Dr. Anil Kumar Aggarwal Page No.20 of 20