Bangalore District Court
State By Central Crime Branch vs In The Matter on 6 January, 2022
IN THE COURT OF THE I ADDL.CMM: BENGALURU
Dated this the 6th day of January 2022.
Present: Shri Anand T Chavan, B.Com., LL.B(Spl.).
I Addl. C.M.M BENGALURU.
JUDGMENT U/s. 355 Cr.P.C.,
Case No. : C.C.No.7681/2013
Date of Offence : 5-11-2010 to 9-11-2010
Name of complainant : State by Central Crime Branch
(Special Enquiry),
(Yelahanka P.S.) Bengaluru.
(By Learned Sr. APP)
Name of accused : Dr.H.B.Shivakumar
S/o H.B.Bachappa,
aged 43 years,
Medical officer,
Ashwini Hospital,
Yelahanka, Bengaluru.
R/o No.799, 13th 'A' main,
Yelahanka Upanagar,
Bengaluru.
( By Sri. R.V.Sriramareddy,
Advocate)
Offence complained off: U/s.337of IPC
Plea of accused : Pleaded not guilty
Final Order : Accused is acquitted
2 C. C.No.7681/2013
Date of Order : 06-01-2022.
JUDGMENT
The Police Inspector CCB (SE) police has filed charge sheet against accused above named for offence punishable under section 337 of I.P.C.
2. Brief facts of prosecution case are that :- On 5-11-2010 C.W.1 took her son/victim/C.W.2 Shafiulla to hospital of accused by name Ashwini Hospital at 2-30 p.m. and admitted him as an in-patient. After examination of C.W.2, accused gave an injection to his waist. After giving said injection, C.W.2 started getting intolerable pain and he lost control over his legs. He was unable to move and to stand on his own. When C.W.1 enquired accused in the matter, he assured to give treatment. Thereafter on 9-11-2010 at 10-00p.m. accused stated that he cannot give treatment to her son in said hospital and he asked her to take him 3 C. C.No.7681/2013 somewhere else. Thereafter C.W.2 was shifted to M.S.Ramaiah Hospital, but he did not recover from consequences of said injection. Hence due to negligent act of accused, C.W.2 lost his total control over his left leg. Thereafter on 6-12-2010 C.W.1 lodged first information before Yelahanka PS, which was registered by them in their P.S.Cr.No.274/2010 and FIR is issued. After obtaining report from concerned medical board, after recording of statement of material witnesses and after conclusion of investigation, I.O. filed charge sheet against accused for above offence.
3. After filing of this charge sheet, cognizance of above offence is taken and summons is issued against accused. Accused has appeared before court in pursuant to summons. Further bail bond executed by accused dated 14.12.2010 depict that, he is enlarged on bail during crimes stage before 4 C. C.No.7681/2013 learned C.M.M. Court. Copies of charge sheet is furnished to accused u/s 207 of Cr.P.C and substance of accusation is framed. Accused has not pleaded guilt of alleged offence and he has claimed to be tried.
4. In order to prove the guilt of the accused, prosecution has examined 9 witnesses as P.Ws.1 to 9 and got marked 9 documents as per Exs.P1 to P9. After completion of prosecution evidence, statement of the accused as required under Section 313 of Cr.P.C. has been recorded. The accused has denied the incriminating evidence against him and he has not led any defence evidence.
5. On the basis of charge sheet allegation, the following points arose for my consideration:
1. Whether the prosecution proves beyond reasonable doubts that after admission of C.W.2/victim to the hospital by name Ashwini Hospital, situated at B.B.Road due to ill health on 05.11.2010, accused being doctor of said 5 C. C.No.7681/2013 hospital negligently gave him an injection to his waist during course of treatment, which resulted into Left sciatic injury and C.W.2 got pain and he lost control over his legs due to such injury and thereby accused has committed offence punishable under section 337 of IPC?
2. What order ?
6. Heard arguments of learned Sr.APP and learned counsel for accused persons. Perused oral and documentary evidence adduced by the prosecution. Further perused written arguments submitted by defence side. The following are findings to above points.
Point No.1 : In the Negative Point No.2 : As per final order, for the following:
REASONS
7. Point No.1 :- P.W.1 Meharunnisa W/o Abdul Jabbar, who is mother of victim has testified in her evidence that, C.W,2 & 3 are her sons, about 10 years back C.W.2 was suffering from 6 C. C.No.7681/2013 headache and vomiting and he was taken to the hospital of accused by name Ashwini Hospital and accused had given an injection to him. Thereafter, due to said injection there was pain and swelling to hands and legs and he could not move properly. PW.1 has further testified that on inquiry with accused, he assured that nothing has happened to him and thereafter CW.2 was taken to Bowring Hospital and M.S. Ramaiah Hospital. Thereafter accused did not give any treatment to C.W.2. However, in cross-examination by defence side, P.W.1 has admitted that they have filed a complaint before Medical Board against accused and to other medical officers under Case No.KMC/ENQ/7/2011 and in said case her son had appeared. She has also admitted that said case is dismissed for non-prosecution on 16-10-2012. Further in the relevant portion of her cross-examination, she has admitted that during treatment of C.W.2, her sons have given consent and 7 C. C.No.7681/2013 accordingly C.W 2 was treated from 5-11-2010 to 16- 11-2011. She has denied that accused has not treated C.W.2 on 5-11-2010 and he enquired him for the first time at 9.00 a.m. on 6-11-2010. She has denied that C.W.2 and her other son Sanaulla are suffering from Polio and they had demanded Rs.5 lakhs from accused. The entire evidence of this witness is denied by defence side and it is suggested to her that she has filed false case and she is deposing falsely, though C.W.2 is not suffering from any impairment.
8. P.W.2/C.W.2 Shafiulla S/o Abdul Jabbar, who is said to be the victim of alleged negligent act of accused has also similarly testified in his evidence that, P.W.1 is his mother and about 10 years back he was suffering from headache and vomiting and he was taken to the hospital of accused by name Ashwini Hospital and accused had given an injection on his left leg. Thereafter, due to said injection there was 8 C. C.No.7681/2013 pain and swelling to his hands and legs and he lost control over himself and he was also unable to move. PW.2 has further testified that on inquiry with you accused, he assured that nothing has happened to him and thereafter he was taken to Sanjay Gandhi Hospital, Bowring Hospital and M.S. Ramaiah Hospital. Thereafter accused did not give any treatment to him. C.W.2 has further stated earlier he himself was earning for his family and now he is unable to do any work.
9. In cross-examination P.W.2 has also admitted that he has filed aforesaid complaint against accused and to other medical officers before Medical board and he appeared in said case. Further he denies to know that aid case is dismissed for non prosecution on 11.10.2012. Most importantly P.W.2 has clearly admitted that in said case, he has stated that a nurse in Ashwini Hospital took him to first floor and gave an 9 C. C.No.7681/2013 injection to his left leg. This aspect raises serious doubt with regard to alleged negligent act of accused, as P.W.2 himself admits that above injection was given by aforesaid Nurse. Further he has admitted that there was complete examination of his body in KMC, but denies that they opined that he is suffering from polio since birth. He has admitted that he and his brother had given consent letter to Ashwini Hospital on 5-11-2010 as per Ex.D1. Further P.W.2 has clearly admitted that one Dr.S.V.Reddy treated him and accused has not treated him on 5-11-2010. He has also admitted that accused has treated him on 6-11-2010. The entire evidence of this witness is also denied by defence side in cross-examination.
10. P.W.3 Samiulla S/o Abdul Jabbar, who is said to be the brother of P.W.2 has also supported the prosecution case by testifying as per version of P.W.1 & 2. In cross-examination quite contrary to 10 C. C.No.7681/2013 prosecution case he has stated that on 5-11-2010 P.W.2 was not taken to Ashwini Hospital and admits that accused examined P.W.2 on 6-11-2010. He has also denied that P.W.2 and his another brother are suffering from Polio since birth and on 6-11-2010 they raised quarrel in above hospital and also demanded amount of Rs.5 lakhs from accused. The entire evidence of this witness is also denied by defence side and it is suggested to him that this false case is filed as accused refused to pay aforesaid amount to them.
11. P.W.4 Munavar Pasha S/o Ameer Jan, who is said to be a social worker has supported prosecution case and testified that on 5-11-2010 P.W.2 was taken to Hospital of accused by name Ashwini Hospital and accused gave an injection to his left leg, which resulted into swelling and pain on his limbs. He has further stated that PW2 lost control over his body 11 C. C.No.7681/2013 with restricted movements. PW.4 has further stated that P.W.3 informed him said matter, he went to Ashwini Hospital and he saw P.W.2 suffering from said problem. He has further stated that when he called accused over phone, he have assured that nothing has happened to P.W.2 and you had taken responsibility if anything will happen to him. P.W.4 has further testified that after 2-3 days P.W.2 was admitted in Ramaiah Hospital and on inquiry with doctor of said hospital, he revealed that P.W.2 suffered from said problem due to injection given by earlier doctor and later P.W.2 was unable to move. However, in cross-examination this witness has also denied that P.W.2 has been suffering from polio since birth and inspite of it this false case is registered against accused. Quite contrary to version of P.Ws.2 & 3, this witness has stated that accused examined P.W.2 on 5-11-2010 itself. The entire evidence of this witness is also denied by defence side and it is suggested to him 12 C. C.No.7681/2013 that on 6-11-2010 he gathered people and demanded RS. 5 lakhs from accused. He has also denied that he is deposing falsely to help P.W.2.
12. P.W.5 Hanumantharaya S/o Sreemantharaya the then P.I. of CCB and one of I.O. of this case has testified that on 22-10-2010 he took up further investigation of case from C.W.10, on same day he recorded statement of P.W.2 and on 7-2-2011 he received letter of Karnataka Medical Council Board as per Ex.P2. He has further stated that on 20-2-2011 he received one more letter from Medical board as per Ex.P3 and thereafter he handed over further investigation of case to C.W.12 in view of his transfer. However, evidence of this witness is not denied by defence side by way of cross-examination, but same does not help the prosecution to prove alleged negligence on the part of accused while treating P.W.2. 13 C. C.No.7681/2013
13. P.W.6 Dr.G.V.Mahendra S/o Vishwanath, a Neuro Physician of M.S.Ramaiah Hospital has testified in his evidence that P.W.2 was referred to him by his hospital for opinion and accordingly he examined him. He has further stated that on examination of P.W.2, he found problem with Perolien nerve of his left leg, he had identified his report issued in that regard as per Ex.P4 and his signature on it as per Ex.P.4(a). Further he has specifically stated that said problem may be caused if an injection is given to the waist of a patient. In cross-examination by defence side, P.W.6 admits that he had examined left leg of P.W.2 , but pleads ignorance to suggestion that his left leg was shorter than his right leg. He has further admitted that the aforesaid problem of perolien nerve may be in existence without giving such injections. The entire evidence of this witness is denied and it is suggested to him that his report is not in accordance with medical jurisprudence.
14 C. C.No.7681/2013
14. P.W.7 N.H.Ramachandraiah S/o Honnaiah, the then P.I. of CCB and I.O. of this case has testified in his evidence that, on 30-7-2011 while he was working as PI of CCB, he took up further investigation of case from C.W.11, on 18-8-2011 he requested Chairman of Medical Board, Jayanagar General Hospital to furnish report by examining the victim /C.W.2 and on 25-12-2011 said hospital has examined said victim. He has identified letter issued by him dated 7-9-2011 as Ex.P5 and further testified that on 17-2-2012 he received report from said Board as per ex.P6 & P7. He has further stated that he filed charge sheet after completion of investigation. In cross-examination by defence side P.W.7 has admitted that initially Yelahanka police had investigated the case and said police had given documents with regard to treatment of P.W.2, which are in the file. He has clearly admitted that as per said documents one Dr.S.V.Reddy i.e., C.W.5 had 15 C. C.No.7681/2013 examined P.W.2 on 5-11-2010. He has further admitted that in said document it is mentioned as to from which problems P.W.2 was suffering and he admits that he has not recorded the statements of P.W.1 and 2. He has also denied to know that P.W.1 had given complaint before medical board and said complaint was dismissed. Most importantly P.W.7 has clearly stated that he came to know about loosing control over legs of P.W.2 as per medical documents. This aspect shows that P.W.7 has not personally assessed the disability of legs of P.W.2. The entire evidence of this witness is also denied by defence side and it is suggested to him that though accused is innocent , he has filed false charge sheet against him.
15. P.W.8 B.G.Srinivas S/o late B.D.Gowda has testified in his evidence that, on 6-12-2010 at 7-30 p.m. while he was SHO of Yelahanka PS, C.W.1 appeared and lodged Ex.P1 first formation, he 16 C. C.No.7681/2013 registered the case in their PS Cr.No.247/2010 and issued FIR as per Ex.P8. He has further testified that on 17-12-2010 he recorded voluntary statement of accused and subsequently he recorded statements of C.W.3 to 10. However, P.W.8 denies to know that on 5-1-2010 C.W.4 raised quarrel with his supporters and he threatened doctor and staff members with deadly consequences. He has further admitted that FIR is lodged after one month. The entire evidence of this witness is denied by defence side and it is suggested to him that he has registered false case to help complainant.
16. P.W.9 Dr.K.Nagaraj S/o late Hanumaiah has testified in his evidence that, from 2004-2012 he has worked as Medical Superintendent in Jayanagar General Hospital, there is a medical board consisting of specialists and head of institution and Medical Superintendent who are co-ordinating with said board. 17 C. C.No.7681/2013 He has further testified that this particular case was referred to their medical board for opinion and in turn they sent notice dated 20-12-2011 to patient by name Shafiulla (C.W.2) to appear before said board. He has identified said letter as per Ex.P 9 and his signature as per Ex.P9(a). P.W.9 has further testified that C.W.2 appeared before board and they referred him to General Physician and Orthopedic Surgeon for examination and opinion. Accordingly Dr.Raghunandan, Physician and Orthopedic Surgeon examined C.W.2 and said patient was referred to NIMHANS for further opinion. He has further testified that from NIMHANS they got opinion that left sciatic injury to C.W.2 cannot be ruled out. P.W.9 has further testified that such injury may be caused if a needle of injection touches sciatic nerve and it may also be caused due to infection. He has further stated that after examining aforesaid reports all members of board signed Ex.P7 report and he has identified his 18 C. C.No.7681/2013 signature on page No.3 of said report as per Ex.P7(a). In cross-examination by defence side, P.W.9 admits that they had given above opinion on the basis of examination by specialists belonged to NIMHANS and he has further stated C.W.2 was also examined by concerned specialists of their board. He has further stated that they have not mentioned in their report that C.W.2 was suffering from paralysis stroke by birth. The entire evidence of this witness is denied by defence side and it is suggested to him that he has filed false report by suppressing material facts.
17. Thus on perusal of entire evidence of prosecution, it shows that though P.W.1 to 4 have asserted that P.W.2 suffered disability due to negligent act of accused, their evidence is totally inconsistent as to who treated P.W.2 on 5-11-2010. Further P.W.2 himself has clearly admitted in his cross-examination that he has testified before 19 C. C.No.7681/2013 Medical board that a Nurse of said hospital gave him said injection and he has clearly admitted that accused has not treated him on 5-11-2010. It is further pertinent to note that absolutely no documents are produced by I.O. in order to prove previous history of P.W.2 that he was hail and healthy. Further despite repeated suggestions by defence side that P.W.2 was suffering from polio, nothing is put forth on record to show that he was not suffering from such disabilities.
18. It is also pertinent to note that though alleged incident said to have taken place on 5-11-2010, the first information has been lodged by P.W.1 on 6-12-2010, which is after one month of alleged incident. The said delay is not explained by P.W.1 and concerned I.O. It is further necessary to consider the evidence of P.W.6 Dr.G.V.Mahendra, Neuro Physician, M.S.Ramaiah Hospital, who has given Ex.P4 report stating that the alleged disability 20 C. C.No.7681/2013 to P.W.2 may be caused if any injection is given to waist of such patient. However, he has also admitted that the problem perolien nerve may also be caused if such injection is not given and he has stated that he does not remember the left leg of P.W.2 was shorter than his right leg. Most importantly P.W.7 N.H.Ramachandraiah, who is one of I.O. of this case has clearly admitted that as per records one Dr.S.V.Reddy treated P.W.2 on 5-11-2010. Under such circumstances nothing is explained as to how accused gave aforesaid injection to P.W.2 on said date, which damaged left sciatic nerve of P.W.2. Further P.W.9 Dr.K.Nagaraj, who was Medical Superintendent of concerned medical board has clearly stated that P.W.2 appeared before their board and he was referred to General Physician and Orthopaedic Surgeon by name Dr.Raghunandan and then he was referred to NIMHANS for further opinion. However, the said 21 C. C.No.7681/2013 Dr.Raghunandan and concerned specialist of NIMHANS, who said to have examined P.W.2 are not cited as witnesses for the reasons best known to the I.O. The said Medical officers are the proper persons to explain as to how P.W.2 suffered damage of his sciatic nerve and how the role of accused is involved in causing said damage or injury. In the absence of evidence of said doctors, mere evidence of P.W.9, who has filed Ex.P7 report with board members on the basis of such opinion cannot be relied upon to bring home the guilt of accused.
19. Further the accused has produced certified copy of order sheet in complaint filed by P.W.1 before Karnataka medical Council under KMC/ENQ NO 72011 which shows that though initially P.W.2 appeared in said case and though evidence of P.W.2 is recorded, later he has not prosecuted the case and thereafter on 11-10-2012 said case has been dismissed for non-prosecution. Further I.O. has also 22 C. C.No.7681/2013 not secured relevant documents of assessment of damage of perolien nerve of C.W.2 from concerned medical board. These all aspects raises doubt with regard to alleged guilt of accused. Further for any legal action arising from negligence, it must be proven that the medical practitioner owed a duty of care to the patient, and; that duty of care was breached, and the patient suffered harm as a result of the breach. Further it is necessary to rely upon following case of Hon'ble Apex Court on medical negligence and relevant portion is culled out as under:
CIVIL APPEAL NO.7380 OF 2009 between Dr. Harish Kumar Khurana Vs Joginder Singh & Ors.
14. Having noted the decisions relied upon by the learned counsel for the parties, it is clear that in every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional was negligent. To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered.
The negligence alleged should be so glaring, in 23 C. C.No.7681/2013 which event the principle of res ipsa loquitur could be made applicable and not based on perception. ....
23. In the above circumstance when there was no medical evidence available before the NCDRC on the crucial medical aspect which required such opinion, the mere reliance placed on the magisterial enquiry would not be sufficient. Though the opinion of the civil surgeon who was a member of the committee is contained in the report, the same cannot be taken as conclusive since such report does not have the statutory favour nor was the civil surgeon who had tendered his opinion available for cross examination or seeking answers by way of interrogatories on the medical aspects. Therefore, if all these aspects are kept in view, the correctness or otherwise of the line of treatment and the decision to conduct the operation and the method followed were all required to be considered in the background of the medical evidence in the particular facts of this case. As indicated, the mere legal principles and the general standard of assessment was not sufficient in a matter of the present nature when the very same patient in the same set up had undergone a successful operation conducted by the same team of doctors. Hence, the conclusion as reached by the NCDRC is not sustainable.
Hence as per aforesaid case of Hon'ble Supreme Court, in order to prove medical evidence appropriate evidence has to be put forth by prosecution and Report of medical board cannot be 24 C. C.No.7681/2013 considered as conclusive proof to prove the alleged negligence on part of accused. Hence for reasons mentioned above, it is incumbent upon this Court to hold that prosecution has failed to prove that C.W.2 has suffered alleged injury to his sciatic nerve as a result of negligence on part of accused. Therefore, the evidence of prosecution does not inspire confidence of the Court to believe that accused has committed offence punishable under section 337 of I.P.C. beyond reasonable doubts. Hence point no.1 is answered in the Negative.
20. Point No.2: -
For the reasons stated and findings given on point No.1, following is:
ORDER Acting under Section 255(1) of Cr.P.C. the accused is acquitted for the offence punishable under Section 337 of IPC.25 C. C.No.7681/2013
The bail bond and surety bond executed by accused shall continue for a period of two months from the date of this order and thereafter same shall stand canceled automatically.
( Typed by me directly on computer, revised, corrected by me and then pronounced in open court on this the 6 th day of January 2022).
(Anand T Chavan) st 1 Addl. CMM., Bengaluru ANNEXURE List of witnesses examined for prosecution :-
P.W.1, Smt.Meharunnissa, P.W.2, Shafiulla, P.W.3, Samiulla, P.W.4, Munavar Pasha, P.W.5, Hanumantharaya, P.W.6, Dr.G.V.Mahendra, P.W.7, N.H.Ramachandraiah, P.W.8, B.G.Srinivas, P.W.9, Dr.K.Nagaraj,
List of exhibits marked for prosecution :-
Ex.P1, Complaint,
Ex.P1(a), Signature of P.W.1,
Ex.P1(b), Signature of P.W.8,
Ex.P2, Letter of Karnataka Medical Council
Board,
Ex.P3, Letter dated 20-2-2011,
Ex.P4, Report of P.W.6,
26 C. C.No.7681/2013
Ex.P5 Letter addressed by P.W.7
dated 7-9-2011,
Ex.P6 &
Ex.P7 Reports of Jayanagar
General Hospital,
Ex.P7(a), Signature of P.W.9,
Ex.P8, First information report,
Ex.P8(a), Signature of P.W.8,
Ex.P9, Letter,
Ex.P9(a), Signature of P.W.9;
List of material object :
NIL
List of Witnesses examined for defence:-
NIL List of documents marked for defence:-
Ex.D1, Consent letter dated 5-11-2010;
1st Addl. CMM., Bengaluru.27 C. C.No.7681/2013
06-1-2022 State by Sr.APP Accused C/B For Judgment (Judgment pronounced in the Open Court) ORDER Acting under Section 248(1) of Cr.P.C. the accused is acquitted for the offence punishable under Section 337 of IPC.
The bail bond and surety bond executed by accused shall continue for a period of two months from the date of this order and thereafter same shall stand canceled automatically.
ACMM, Bengaluru.