Delhi District Court
State vs . G. D Gupta on 7 March, 2007
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IN THE COURT OF SH. AJAY GOEL
METROPOLITAN MAGISTRATE: DELHI
State Vs. G. D Gupta
FIR NO.: 263/91
U/S : 338/506 IPC
P.S. : Chandni Chowk
Date of Arguments: 28-2-2007
Date of decision: 02.03.2007
Date of Receipt of File: 27-01-06
J U D G E M E N T
A. Case No. : 82/2C B. Date of Commission of offence : 6-9-91 C. Name & Address of accused : G.D Gupta s/o Sh.Shri Ram, r/o 40 C/227, West Azad Nagar, Delhi-51.
D. Name & address of complainant : Sh. Suresh Sharma s/o Gopi Chand, r/o1720, Roshanpura, Cheera Khana, Nai Sarak, 2 Delhi.
E. Offence complained of : U/s 338/506 IPC F. Plea of the accused : Pleaded not guilty G. Final order : Acquitted. H. Date of such order : 02.03.2007 BRIEF FACTS OF THE CASE:
Brief facts of the case are that on 25-10-91 the above named complainant Suresh Sharma, handed over one complaint to SI Rampat wherein it has been alleged that the accused Dr. G.D Gupta has given an injection to his son Navin on 6-9-91 after which the leg of his developed swelling and the medicines given thereafter by Dr. G.D Gupta, could not cure that swelling and ultimately his son was admitted in LNJP hospital wherein Navin's right leg was amputated on 21-9-91 the said Navin remained hospitalised even on the date of the complaint i.e. on 7-10-91 and during that time he was threatened with dire consequences by some unknown persons at the behest of the accused. Based on the above statement, a case was got registered and investigation was carried out. During investigation 3 site plan was prepared statement of witnesses were recorded and on completion of investigation a report u/s 173 Cr. P. C was submitted to the court, for trial of the accused.
2. After complying with the provisions of section 207 Cr. P. C the accused was charged u/ 338 IPC, to which accused pleaded not guilty and claimed trial, on explanation.
3. To prove its case prosecution has examined seven witnesses in this case, namely:
PW1 Sh. Navin
PW2 Sh. Suresh Sharma
PW3 Smt. Veena
PW4 ASI Gian Chand
PW5 Dr. Preeti, M.S LNJP
PW6 Sh. Jai Balak Pd. Registrar Council
of Ayurvedic and Unani Medicines,
Bihar
PW7 Dr. Sudhir Kr. Kapoor, Orthopedic,
LNJP.
Statement of accused u/s 313 Cr. P. C was recorded, wherein he denied the incriminating evidence 4 and stated that he has been falsely implicated in this case. Accused has examined three DW in his defence.
4. I have heard ld. APP for the state and counsel for accused, perused the record carefully and have given thoughtful consideration to the rival contentions.
5. PW-1 has deposed that on 6-9-91 he was given injection by the accused on his right leg thigh, thereafter he got pain, he went to his house, got swelling on his leg. He informed his mother that he was unable to go. Then he again went to doctor and he orally prescribed tablet and told nothing to worry. He further deposed that in the evening his father noticed great swelling then they again went to the doctor. He prescribed tube and told to warm the leg by bottle. They complied his instructions but no relief could be made. This continued till 9th September. On 9th September evening they were referred to another doctor and on 10th September he was taken to Ervin hospital and was admitted there and he was told to suffering was gangrene and his leg was amputated on 21st September. 5
PW-3 has generally deposed on the same lines as PW-1.
PW-2 has generally deposed on the same lines as his complaint, Ex.PW2/1 PW4 is the duty officer, who has deposed about registration of FIR Ex. PW4/A .
PW-5 has given opinion on Ex. PW5-A. PW-6 has proved the Certificate of issued by Ayurvedic and Unani System of Medicines Act 1951 on 30-9-67 as Vaidh Ex. PW6/A. PW-7 has proved the admission file and the treatment reports of patient Navin, who was admitted in the hospital on 10th September 91 with problem of loss of movement and sensation in the right leg following an injection given outside the hospital. He suspected impending gangrene in the right leg, fasciotomy was done on 11-9-91 in an attempt to save the leg but the patient developed full gangrene and finally amputation was done on 21st September 91 and he gave his opinion to SHO, P. S town Hall and he gave his report to Dr. Preeti, the then Dy. Medical Supdt. and who gave her Ex. PW-5/A to SHO.
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6. DW1 Dr. L C Gupta Specialist Forensic Medicine Presently posted at Deen Dayal Hospital, Delhi has deposed in his evidence that after going through the documents available on the file it is his considered opinion that if an injection is given intramuscularly to any person a prick mark of needle will be visible at the place where the said injection has been given. There will be no nerve, artery and vein will be damaged if any intramuscular injection is given over the outermost and uppermost part of thigh as there is no major nerve artery or vein anatomically present there. He further deposed that if a person suffering from RHD ( Reumatic Heart Disease) that can cause gangrene formation in distant part of body i.e. foot and leg as there are sufficient chances for dislodgement or am bolus from the heart. If a lay man trained to give intramuscular injection then he can be capable to inject any person if required and in this case previous to alleged injection various injections were given intramuscularly in the same manner by the accused. Hence, chances of negligence on the part of the accused being a treating person is not likely. Apart from above there are various 7 reasons which may or may not detected out even after rigorous investigation and examinations. It is true to suggest that if a person has been administering injection of penidura to a person every month for last two years on regular basis without causing any harm to the said patient it is less likely that he will cause harm to the patient during last injection as alleged. He has also deposed that it is correct that the contents mentioned in the report EX PW5/A are true and according to this no definite opinion about the negligence of doctor concerned/ accused can be made.
7. DW2 Dr. Pradeep Kumar Diwan has also deposed in his evidence that Injection can be injected on outer side of thigh. Gangrene can occurred to the patient suffering from Rheumatic heard disease ( RHD). It is one of the complication of R H D. It may occurred at any time to the patient of RHD. The patient may complain of severe sudden pain with swelling and numbness and disccelaure nation of the part. He also deposed that he is not personally aware of the facts of the case.
8. The counsel for the accused has argued that 8 there is no negligence on the part of the accused and further that there is no connection of the injuries and treatment. These arguments have been refuted by the APP and he has submitted that it was the wrong injection which has caused to the amputation of the leg of the son of the complainant. The case of the complainant/prosecution mainly revolves round the question whether any injection was given by the accused or whether the same was cause of the sufferings of the son of the complainant. The injection was allegedly given on 06.09.91 and leg was amputated on 21.09.91 after the victim was admitted on 10.09.91 in the hospital but strange enough the complaint has been made on 25.10.91 and no explanation has been given as to why there is so much delay in lodging the complaint to the police. In the complaint itself no reason has been given as to how the complainant came to the conclusion that the accused was negligent. PW1 himself has stated that injection was prescribed for the last two years by the Dr. of Irwin hospital meaning thereby as far as the medicine is concerned the injection was to not to administered at the behest of the accused 9 and he never prescribed this injection. It is also deposed by PW1 that they had purchased the injection and the Dr. had to only administer the medicine by the needle in the syringe. He has stated that the same was administered in the hip reason. It is not brought in the statement of the witness that whether the injection was to be administered on thigh or hip but this witness has taken the contrary stand one after another as in the chief examination he has stated that he was administered injection on right leg thigh thereafter in cross he stated that it was given on hip and thereafter again he denied that the injection was not given on his thigh. Then if the same was not given on the thigh how he got the swelling on the thigh is also not proved by the prosecution. No public witness has been joined who could depose that injection was administered on which reason or could substantiate the allegations alleged by the complainant. PW2 the complainant is not eye witness and he has deposed only on the derived knowledge got from his wife as he had not gone to the Doctor for any treatment, thus his testimony is of no help to the prosecution . He himself has admitted that 10 the injection has been administered by the accused for the last two years on the prescription of the Doctor at the Irwin Hospital as always they used to purchase their own injection which was tested prior to giving full dose. Thus he could not pin point as to what was the difference in the mode of administering injection , on earlier occasion and on this occasion which could show the negligence on the part of the Doctor. PW3 is the wife of the complainant and mother of boy but nothing material has come out in her examination also except the repetition. PW5 and PW7 are material witnesses who have submitted its report. They have stated that they are not hundred percent sure about the exact cause of the problem and gangrene can rarely concur in RHD and the patient in question was suffering from RHD (i.e rheumatic heart disease) and possibility of gangrene was very remote. PW5 has also stated that she does not know the contents of the injection and rather stated that she can not say whether RHD patient can develop gangrene. Thus from the testimony of all the witnesses the facts which have emerged and are to be seen qua the negligence of accused are that the injection should 11 not have been administered on thigh but actually where it should have been given or where it was given is not proved beyond any shadow of doubt because witness no. 1 i. e. PW1 is not sure regarding the place of injection. PW2 is not eye witness, PW3 says it was given on thigh but no evidence is brought on record as to where it was to be given as per the doctor who advised it. Thus benefit of doubt has to be given to the accused for this . Further, whether the injection was at all given by the accused is also not brought on record by the prosecution to full satisfaction as no independent eye witness has been produced and moreover no prescription of the handwriting of the Doctor has been placed on the record. The report EX PW5/A in these circumstances does not points towards the guilt of the accused. Rather the accused has produced DW1 and DW2 in support of his plea that he was not at all negligent. The procedure and the reasons have been explained in statement of DW1 and DW2 and they are Doctor and their evidence regarding medical jurisprudence can not be kept aside. Rather DW1 has deposed that if a lay man is trained to give 12 intramuscular injection then he can be capable to inject any person and it is common in our day to day life and specially in Indian set up that normally if there is family member in the house who is regularly required any injection then one of the family members learns how to give the injection. Rather the counsel for the accused has rightly argued that EX PW5/A is in his favour as no definite opinion have been given.
9. The counsel has relied upon judgment 2006 (3) RCR (Criminal) Andhra Pradesh High Court , Dr. M Raghava Rao and another vs Oruganti Buchireddy and another wherein it has been held that in case of the medical negligence when deceased injured in motor accident and death occurred after an injection but there is no allegation of carelessness- thus Doctor not guilty of causing death. It is further elaborated that allegation that injection caused the death,but no allegation that Doctor gave the injection in such a careless manner that it caused his death then no offence under Section 304-A IPC made out.
The counsel has also relied upon another Judgment 13 (2005) 6SCC Jacob Mathew Vs. State of Punjab and another wherein it has been held that it must be shown that accused doctor 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.
Thus in these circumstances relying upon the above judgments cited I am of the view that in criminal law the negligence must be of high degree as to be gross and should be enough to bring the accused within the four corners of acquisition and in the present case the same is missing. Thus prosecution has failed to prove the ingredients of section 338 of IPC.
10. In view of the above discussion, it is held that prosecution has failed to prove its case against the accused. Thus, the accused G. D Gupta is held not guilty of the charges levelled against him and he is acquitted accordingly. His bail bonds are discharged. Endorsement if any be cancelled. File be consigned to record-room.
Announced in the open court.
On dated: 02.03.2007
(Ajay Goel)
METROPOLITAN MAGISTRATE :DELHI