Bangalore District Court
The State By P.I vs Chandrashekar S/O Ramaiah B on 14 October, 2022
KABC030066752017
Presented on : 27-01-2017
Registered on : 27-01-2017
Decided on : 14-10-2022
Duration : 5 years, 8 months, 18 days
IN THE COURT OF THE VIII ADDL. C.M.M., BENGALURU.
PRESENT: Sri. K.N. Shivakumar, B.Sc., (Agri) L.L.M.,
VIII Adl. C.M.M,Bengaluru.
Dated this the 14th Day of October, 2022
C.C. NO.3043/2017
Complainant:
The State by P.I.
Cubbon park Police Station
(By Sr. Assistant Public Prosecutor)
Versus
Accused:
Chandrashekar s/o Ramaiah B
Age 48 years, r/at No.17
2 C.C.No.3043/2017
Austing Wellington Apartment
No.101, Richmond Town
Wellington Street
Bengaluru - 560 001
(By Sri.N.C.Mohan, Advocate)
PARTICULARS U/S 355 OF THE Cr.P.C. 1973.
1. Sl. No. of the Case 3043/2017
2. The date of commission 10062016
of the offence
3. Name of the complainant Purushotham D.S.
4. Name of the accused Chandrashekar
5. The offence complained of U/s. 338 of IPC
or proved
6. Plea of the accused and Pleaded not guilty
his examination
7. Final Order Accused is convicted
8. Date of such order 14102022
3 C.C.No.3043/2017
JUDGMENT
The Police SubInspector of Cubbon Park Police Station has filed the final report against the accused for the offence punishable U/s. 338 of IPC.
2. The case of the prosecution is that on 10062016 the son of CW1 one Lakshya.P, aged about 5 ½ years who was studying in Bishop Cotton boys' High School had met with an accident with a desk inside the class room and sustained grievous injuries on his right hand centre finger and ring finger. Thereafter he was admitted to the Mallya Hospital, Bangalore for treatment, wherein the accused was working as Anesthesiologist. While administering the anesthesia before the surgery of the fingers of said child as the accused has not taken the necessary precautions and negligently inducted the anesthesia, whereby caused the said child to develop 4 C.C.No.3043/2017 Pneumothorax abnormality due to which said child has lost his conscious and went to coma stage. Accordingly, the accused has committed the offence punishable u/s 338 of IPC.
3. On receipt of the complaint, the police have registered the case and after completion of investigation the Investigating Officer has submitted the charge sheet and thereafter cognizance was taken for the offence punishable under sections 338 of IPC. In pursuance of summons the accused appeared before the court and by moving application released on bail. The copy of charge sheet and prosecution papers were furnished to the accused as required under Section 207 of Cr.P.C. Heard before charge. As there were sufficient materials available, charge was framed, read over and explained to the accused in the vernacular, for which he pleaded not guilty, but claimed to be tried. Then the case was posted for evidence. 5 C.C.No.3043/2017
4. To substantiate the prosecution case, the prosecution has examined 14 witnesses as PW1 to PW14 and got marked 9 documents as Ex.P1 to 9. The statement of accused as required under section 313 of Cr.P.C was recorded, wherein the accused have denied all the incriminating circumstances appeared against him in the evidence of prosecution. The accused has chosen to lead evidence and examined 3 witnesses as DW1 to 3 on his behalf and marked one document as Ex.D1.
5. Heard arguments, Perused the materials available on record.
6. From the above facts, the points that arise for determination of this Court are as follows:
1. Whether the prosecution proved beyond reasonable doubt that on 10/06/2016 CW.1's 6 C.C.No.3043/2017 son i.e., Lakshay.P has developed Pneumothoraxan abnormality which may cause death or affect his personal safety due rash or negligent act or omission of the accused who has administered anesthesia to him in Mallya Hospital, Bangalore and thereby committed an offence punishable U/s.338 of IPC?
2. What order?
7. My findings on the above points are as under:
Point No.1 : In the Affirmative
Point No.2 : As per final order for the following:
REASONS
8. Points No.1: The prosecution has alleged that the accused has committed the offence punishable u/s 338 of IPC. To prove 7 C.C.No.3043/2017 the offence u/s 338 of IPC, it is necessary to prove that a person has suffered grievous hurt which would endanger human life or the personal safety of such person or any other persons and that hurt was caused due to any act or omission of any person rashly and negligently to do such act or omission. As such in the present case the prosecution has to establish that the said child Lakshya - son of CW1 had suffered grievous hurt so as to endanger his life or personal safety. Further, it has to establish that the said hurt was caused due to rash or negligent act or omission on the part of the accused. In this regard, it is the specific case of the prosecution that the accused was working as anesthesiologist in the said Mallya Hospital, wherein the said child Lakshya was admitted for surgery of his injured fingers. Before going for the surgery the accused has administered or inducted anesthesia to the said child negligently without taking 8 C.C.No.3043/2017 necessary precautions and without following the preanesthetic investigations and medications and also without following the preanesthestic evaluation and procedures.
9. In order to substantiate its case the prosecution has examined the father of said child as PW1, the witnesses to the mahazar conducted in the said school of the child as PW2 and 5, the witnesses to the mahazar conducted in the said Mallya Hospital as PW3 and 4, one of the eye witnesscumteacher of the said school as PW6, the then Joint Director of the Health and Family Welfare Department of the Government of Karnataka who has headed the enquiry team as PW7, the members of his team as PW8, 9, 11 and 12, the Pediatric ICU Consultant of Manipal Hospital who has treated the said child PostPneumothorasic Development as PW10 and the Pediatrician of said Mallya Hospital who treated the said child 9 C.C.No.3043/2017 in the Ward PostICU Treatments as PW13 and the I.O of this case as PW14. On the other hand in order to counter the evidence lead by the prosecution the accused got examined two witnesses as DW1 and 2 who are the Anesthesiologist and Pulmonary Medicine Specialist respectively.
10. On perusal of the charge sheet materials and the evidence of complainantcumfather of the victim child PW1, the teacher of the said Bishop Cotton School who was an eye witnesses to the alleged accidentPW6 and also the I.OPW14 and the mahazar witnesses PW2 and 5 to the mahazar conducted in the said school by the I.O, it appears that there is no dispute with regard to the alleged accident in the school and injuries sustained by the said child Lakshya due to said accident. It is also not in dispute that said child was admitted to the Mallya Hospital for treatment immediately after the alleged accident. 10 C.C.No.3043/2017 Further, it is also evident from the materials available on record as well as the testimony of these witnesses that after giving the FirstAid treatments to said child, one Dr.K.Anand, Plastic Surgeon of said hospital was entrusted for doing surgery and the present accused was entrusted with the duty of administration or induction of anesthesia prior to said surgery. Further from the evidence of PW1, PW10 i.e., Pediatric ICU Consultant who treated said Lakshya in Manipal Hospital after development of said abnormality, the PW13 i.e., the Pediatrician who treated the said child PostICU Treatments in Manipal Hospital and also the evidence of I.O PW14 who collected the relevant medical records from the said two Hospitals, it is revealed that the alleged complication of Pneumothorax was developed after induction of anesthesia prior to the surgery. As PW10 deposed in his evidence that on 10062016 the accused called him from Mallya Hospital 11 C.C.No.3043/2017 through telephone and stated that said child Lakshya has developed desaturation leading to Pneumothorax after administering anesthesia and he has requested for immediate treatment in Manipal Hospital wherein the PICU facility was there. He further deposed that as such immediately he sent his Junior Doctors and staff at about 9.30 p.m., to said Mallya Hospital, wherein they have examined the said child and found that the tube inserted to the lungs of the said child was blocked and as such they have immediately changed said tube and brought the said child to Manipal Hospital at about 10.30 p.m., wherein it was found that the child has suffered de saturation and some infirmity in the heart beats. The defense counsel in the course of crossexamination of this witness has neither denied nor disputed the fact that on 10062016 the accused called this witness through telephone, informed about the development of Pneumothorax by said child after 12 C.C.No.3043/2017 administering the anesthesia and requesting him for immediate treatment in Manipal Hospital. The PW1 also in his evidence deposed in corroboration to the said facts. The I.O PW14 also deposed in support of the same has to conducting the mahazar as per Ex.P2 in the operation theatre of the said Mallya Hospital. Thus, it is evident that before going for the surgery and after administering the anesthesia the said child has developed some abnormalities i.e., desatuaration leading to Pneumothrox. It is not the case of the accused that he has not administered the anesthesia to the said child. Thus, it is also evident that preoperative anesthesia was inducted or administered to said child by the accused in the said Mallya Hospital.
11. It is the specific case of the prosecution that due to the negligence on the part of the accused before administering the 13 C.C.No.3043/2017 alleged anesthesia drug to the said child and negligence on the part of the accused while selecting the dosage of said anesthesia drug and also due to negligence on the part of this accused in taking necessary and basic preanesthesia induction procedures, the said child had suffered such abnormality or alleged Pneumothroxin disorder. In this regard, the father of said child PW1, who is the complainant in this case, in his evidence categorically deposed that after taking his child for surgery to the operation theatre at about 7.15 p.m., the Surgeon entrusted for the operation has came out of the operation room and informed that as the lungs of the child are punctured and he is suffering breathing problem. Thereafter the neurologist has come and examined and advised to take the child to the hospital having PICU facility, as the child's health condition is serious. Thereafter, the child was taken to the Manipal Hospital and he was treated for 58 days in ICU. 14 C.C.No.3043/2017 Thereafter on enquiry with the said Manipal Hospital it was informed that as there was some negligence while administering anesthesia to the child before surgery said abnormality or problem has developed. As such, he stated to have lodged complaint against the anesthesiologist of the said hospital i.e., accused.
12. However, the PW10 who stated to had treated the said child in PICU of the said Municipal Hospital in his evidence not clearly stated about the informing PW1 so. But in his evidence he has stated about the accused calling him through telephone and requesting for immediate treatment stating that the said child Lakshay had developed pneumothorax after induction of anesthesia. Further this witness also deposed about the deteriorated health condition of said child as examined by hi junior colleagues on visiting Mallya Hospital and bringing said 15 C.C.No.3043/2017 child to the Manipal Hospital. Further he himself stated to had examined said child and found problem in the heart beats and lowering of oxygen level. This witness also stated that he has given the detailed report of the treatment of the said child as per Ex.P6. In Ex.P6 it is clearly mentioned in the column 'History and presentation on admission to said hospital' that 'in the operating room following induction with anesthetic medicines and intubation he had developed desaturation and was suspected to have pneumothorax.' In the course of cross examination of this witness the defence counsel has suggested that 'was it not possible that said Lakshya suffered a condition known as bilateral congenital emphysematous asymptomatic bullae or congenital cystic disease of the thorax. For which this witness has deposed that they have done chest xray for the said boy and no such abnormalities were reported. However 16 C.C.No.3043/2017 this witness in the conclusion of the cross examination stated that from the information which he had, he cannot conclude that the said child Lakshya had suffered due to negligence of the accused. However, though this witness says that he cannot come to such conclusion, he has not specifically stated what is the exact reason for such abnormality of said child i.e., the development of pnuemothorax. But as already stated herein above in his examinationinchief and also the report Ex.P6, he has categorically observed that the said abnormality was developed following induction with anesthetic medicines and intubation in the operation room of the said Mallya Hospital. Thus, it appears that only due to any deficiency or lack of the exercises of due diligence while administering the anesthetic medicine said abnormality might had developed in the child. 17 C.C.No.3043/2017
13. Apart from the above it is the case of the prosecution that pursuant to alleged incident the Health and Family Welfare Department of the Government of Karnataka had formed an enquiry team to enquire about the actual cause of the alleged development of abnormality of said child Lakshya. In the said team as already discussed the PW7 who was the then Joint Director of the Health and Family Welfare Department was the head and other experts i.e., the expert Doctors or Surgeons in different fields like Pediatrics, Neurology, Anesthesiology and ICU were members. The PW8, 9, 11 and 12 are among the said members. The constitution of the said enquiry team and its members was nowhere denied or disputed by the accused.
14. PW7 who was leading the said team in his evidence deposed about the Government constituting the said enquiry team consisting himself and CW11 to 14. In his cross 18 C.C.No.3043/2017 examination nothing was elicited either to deny or dispute such constitution of the enquiry team by the Government. Further, the PW7 deposed that pursuant to the order of the government, the team has visited the Mallya Hospital and the operation theatre room in the said hospital, examined the machineries and equipments in the said operation theatre and also enquired the Doctors i.e., the accused and the Surgeon Dr.Anand and obtained written explanations from them and also collected the documents relating to the treatment of the said child Lakshya in the said hospital till he was shifted to Manipal Hospital. He further deposed that on analyzing all those factors, the enquiry team stated to had submitted an interim report to the government. On verifying the said interim report the then Health Minister had appointed CW15 and 16 to give their opinion about the interim report. After obtaining the opinion of CW15 and 16, the enquiry team has submitted final 19 C.C.No.3043/2017 report to the Government and also to the Police Station containing the complete details as per Ex.P4.
15. This witness further deposed that as per the final report Ex.P4, it was found that at the time of administering the anesthetic medicines, equipments and machineries used were in good condition. But at the time of administering or induction of anesthetic medicines they appear to have not maintained the basic requirements and practices. After the development of the said abnormality they have taken proper steps and immediate treatments. This witness has stated that all those details were reported in their final report Ex.P4. In the course of cross examination of this witness the defense counsel has put some questions with regard to congenital cystic disease of lungs and also bilateral congenital emphysematous asymptomatic bullae and suggested that it may not be possible to identify the said 20 C.C.No.3043/2017 two diseases in all the times. But same was denied by this witnessPW7. Thereafter the defence counsel suggested that Pulmologist is a competent person to say about the same, which was admitted by this witness. But no such pulmologist is examined by the accused to say about the said two diseases. If at all it is the specific case of the accused that the said child had developed said two diseases or any one of them, he could have examined any pulmologist to substantiate his defense. Except putting such suggestions about the nature of said diseases and the conditions, nowhere it was suggested that the said child has developed or suffered any of the said diseases.
16. On careful scrutiny of the said report Ex.P4 it is evident that there are few factors which may lead to development of such abnormality i.e., pneumothorax such as human factors like error of judgment or negligence on the part of the 21 C.C.No.3043/2017 anesthetist such as mistake, lack of vigilance, lack of supervision, fault in technic or presence of preexisting lung condition which may not have been detected by any diagnostics preoperatively or unexpected, untoward complication which is known to occur during the anesthesia. But in the final opinion in the sad report, it is opined that no evidence of any equipment failure was found in their investigation. Similarly, there were no evidences of any preexisting obvious conditions in the preanaesthetic evaluation predisposing for development of pneumothorax preanasthesia were found as per the case records. It is also observed that prior to surgery no chest xray was taken. Further while summerising the consensus opinion of the said enquiry team in the said report, it was clearly mentioned that there were some deficiencies in the process of care during preanesthetic chekup. Similarly, the post pneumothorax shock management could have been better with 22 C.C.No.3043/2017 frequent documentation of vital sign monitoring. It is clearly stated that no evidence of any mechanical cause or equipmental failure was found in the causation of said pneumothorax. Thus, from the evidence of PW7 as well as the report of enquiry teamEx.P4, it appears that there were no mechanical cause or equipmental failure leading to such complication. More so, there were no preexisting obvious conditions in the health of the child prior to the administration of anesthesia that would lead to development of such abnormality such as preexisting lung disease or present lung disease or family history of any lung disease. This was also admitted by the DW2 in his own testimony, who was examined on behalf of the accused.
17. That apart the other members of the said enquiry team such as PW8, 11 and 12 also in their evidence corroborated 23 C.C.No.3043/2017 testimony of PW7 as well as the report Ex.P4. All these experts in different fields of medicine have categorically deposed in support of the report Ex.P4 and the observations and opinions made therein. The PW8 is a Neuro Surgeon, PW11 is a Pediatric Surgeon and PW12 is an anaesthetist. All these experts being the members of the enquiry team have stated that they have visited the said Mallya hospital and the said operation theatre and examined the machineries, equipments and the records pertaining to the treatment of the said child in the said hospital in respect of their respective fields or specializations and submitted their individual reports to the enquiry team.
18. Further, the PW9 who was appointed by the Health Department to review the interim report of the enquiry team also made an independent investigation as per the directions of 24 C.C.No.3043/2017 the Government and submitted his separate report as per Ex.P5. In the said report he has also observed that there are no records of the basic mandatory preoperative investigations, no indication of administration of usual basic premedication, no evidence of mandatory preoxygenation prior to induction of anesthesia, which is mandatory in the age group of said child. It is also observed that pericardial stethoscope monitoring has not been employed and the dosage of drug employed for induction of Anesthesia could have been recalibrated in absences of premedication. Ultimately this witness also made conclusive remarks stating that no mechanical mall function or equipment failure or preoperative conditions of the child was the cause for the such development of abnormality, rather the short fall pertaining to preoperative medication, oxygenation and monitoring appears to be the cause for such spontaneous development of tension pneumothorax.
25 C.C.No.3043/2017
19. In the course of cross examination of PW9 & 12 the defense counsel has put several suggestions and questions with regard to the machineries and equipments examined by these witness and the equiry team in the said operation theatre of the said hospital. It was suggested that they have just observed the machineries and equipments therein, but not applied or used them. It was also suggested that there was no information as to whether said machineries and equipments were serviced or repaired between the date of incident and the date of visit of these experts or the enquiry team. It is also suggested and admitted that in between the said period those machineries and equipments have been used for the surgery works in the said Hospital. But, as per suggestion of defence counsel himself to Pw9 & 12, those machineries & equipments have been in use between the date of said incident & the date of visit of the expert team. If so, if at all any such defect or 26 C.C.No.3043/2017 failure in the machineries & the equipments was there, the effect of the same would have been resulted in the subsequent operations/surgeries also. Though, the defense counsel has put all such questions and suggestions regarding the machineries and equipments therein, it is not the case or the defense of the accused that there was any deficiency or defect in working or functioning of any such machineries or equipments that were used for administering the anesthesia or to be used for said surgery. That being the case all those suggestions and questions does not hold water. Even if it is the case of the accused that there was any such defect or deficiency in any of such machineries or equipments, how come he has used such machineries or equipments for administering anesthesia or any preanaesthestic tests or examinations knowing well about such deficiency or defects. 27 C.C.No.3043/2017 Therefore, all these defences would not come to the rescue of the accused.
20. Further in the course of cross examination of PW9 it was also suggested that the reasons or causes of pneumothorax development are asymptomatic and they may not be found in any diagnostic examinations, which was admitted by the PW9. But this defense may not help the accused in this case because as already discussed herein above as per the testimony of PW1 and PW7 and also the materials available on record, upon development of said abnormality or pneumothorax, accused himself stated to had called PW7 through telephone and informed about the development of said abnormality and requested him to provide immediate treatment for the same in the Manipal Hospital. Therefore, the development of pneumothorax abnormality might had been observed by the 28 C.C.No.3043/2017 accused. More over, it is not the issue for consideration whether such development could be symptomatic or asymptomatic, rather it is necessary in this case to examine as to what is the actual cause for such development. Therefore, all these defense put forth in the course of cross examination of PW9 would not come to the rescue of the accused.
21. The defence counsel in the course of arguments submitted that though the equiry team has submitted the report as per Ex.P4 stating such deficiencies or defects in administering anesthesia to said child, The Pw7 who was the head of said team has categorically stated in his cross examination that he could not say that said child has developed such abnormality i.e Pneumothorax only due to negligence of the accused and the said opinion was conceded by other experts of the team including Pw9 in their cross 29 C.C.No.3043/2017 examination. No doubt all said witnesses have stated so. But, it is very clear that what is stated by them all is that they could not say that said abnormality was developed only due to negligence of accused, but not said that it was not due to negligence of accused as stated in the report. Said negligence of the accused may be one of the reasons or sole reason. Because the said expert team in its report mentioned only the procedural and operational lapses on the part of accused while administering anesthesia, but not any other extraneous factors like prior history of any obvious heath condition of the child or family history of said child with any such health condition that may lead to such development of abnormality. That apart, it is pertinent to note here that the said experts were appointed to enquiry, investigate & find out the cause or causes for said abnormality development. As such it is their duty to do investigation in that angle and give their opinion. All these 30 C.C.No.3043/2017 witnesses have not stated that they have not done complete investigation before submitting the final report. Besides the said final report the Pw9 has done independent investigation & gave his report as per Ex.P5. Hence if at all any other reasons or causes were there for said abnormality, definitely the same would have been reflected in the said reports ExP4 & 5. More over though these witnesses have stated so in their cross examination, the same is not reflecting in the said reports. What prevented them to say so in the reports, nothing is stated by any of them as to why it was not mentioned in the reports. Therefore, this opinion expressed only during their cross examination without proper explanation cant be accepted as a sole basis to acquit the accused.
22. The accused in order to counter or disprove the case of the prosecution got examined three witnesses DW1 to 3. But 31 C.C.No.3043/2017 the evidence of DW3 in his examination in chief was discarded as he didn't turn up for crossexamination. The Dw1 & 2 are an Anesthetist & a pulmanary medicine specialist respectively. Both these witnesses abviously have deposed in support of the accused. The Dw1 in his evidence deposed that the tests as stated in page 2 of the report Ex.P4 i.e, routine blood tests, Preoperative chest Xray, ECG, Preoperative Thickness are not needed for such a healthy child and the induction of anticholinergics & antiemetics are necessary are also not needed as per modern anesthesia. He also deposed that the said child was done with modern anesthesia. But surgery was not yert done to said child, rather said abnormality was developed prior to surgery and fallowing the induction of anesthesia. Further though this witness stated that such pre operative tests & inductions were not needed for such child, he has not stated as to in which kind of children or patients such 32 C.C.No.3043/2017 tests and inductions are necessary. More so, he has not stated as to under which medical literature it is stated so. Further he also deposed that it is difficult to do preoxygenation test prior to induction of anesthesia in children of 5 years age group. But the accused has no where stated as to whether he attempted to do such test to said child and found any such difficulty prior to induction of anesthesia. More over, when any procedure or test is medically mandatory, difficulty in doing it or administering it, unless it was an impossibility, cant be an excuse that too while dealing with life of an individual.
23. The Dw2 in his evidence also deposed that no such routine chest Xray was needed for a child with no preexisting lung disease or present lung disease or family history of such lung disease. But he has not stated about other procedures , tests & inductions recommended to be done prior to 33 C.C.No.3043/2017 administering anesthesia. More so it is pertinent to note that though these two experts stated so, they have not stated as to which is or are the causes for sudden development of such abnormality by said child immediately fallowing induction of anesthesia. That apart both these witnesses categorically admitted that the members of said enquiry team which has submitted the reports at Ex.P4 & 5 are all experts in different and relevant fields of medicine. They have also deposed that they could not say that the opinion of said team is wrong. That being the case, unless these experts give any other specific cause or reason of the development of such abnormality, it may not be proper to accepted the version or opinion of these two witnesses by rejecting or refusing the concurring opinion of all the experts and their reports, who were appointed and authorized by the government for said task.
34 C.C.No.3043/2017
24. The defence counsel has also relied on the report of CW15 Dr.Jagadish Chinnappa which was marked through PW11 on confrontation and argued that as per his report accused was not responsible for said abnormality. But said report was not marked through its author said Dr. Jagadish Chinnappa. More so, though said Jagadish Chinnappa was examined by the accused as DW3, as he didn't turn up & tender for cross examination, his evidence was discarded and as such his report at Ex.D1 stood untestified through crossexamination. Hence it may not be appropriate to rely on such untestified report to discard a fully testified and authorized reports like Ex.P4 & 5 and the testimony of their authors. That apart though the accused has relied on such report and testimony of Dw1 & 2, nothing was elicited in the course of cross examination of experts of said team like PW7 to 9, 11 & 12 to 35 C.C.No.3043/2017 show that for any reason or reasons all these experts have given such false reports.
25. The defence counsel has relied on the decision of Hon'ble Apex Court in the case of Jacob Mathew Vs. State of Punjab & ors, reported in AIR 2005 SC 3180 in support of his defence. But in the said decision Hon'ble Apex Court has held that 'a doctor cannot be held guilty under Sec.304A IPC for non availabilty of Oxygen Cylinder or empty Cylinder in a Hospital, when it is not the case that the accused is not a doctor qualified to treat the patient'. But in the present case it is not the defence of the accused that there was any such deficiency in the facilities or machinery or equipments in the said Hospital. Further in the said decision the Hon'ble Apex court while discussing observations of Hon'ble apex Court and various High Courts in different cases, has made a concluding remark 36 C.C.No.3043/2017 that 'when it comes to the failure of taking precautions or procedures what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to special or extraordinary precautions which might have prevented the particular happening cant be the standard for judging the alleged negligence'. In the present case what is pointed out in the report of experts appears to be the mandatory procedures, tests and inductions which ought to have been fallowed by the accused before induction of anesthesia to said child. Hence those precautions doesn't appear to be special precautions, but a mandatory ones. Thus the ratio and observation made in the said decision may not come the rescue of this accused.
26. From all the above discussions, facts, circumstances and the oral and documentary evidences it appears very clearly that 37 C.C.No.3043/2017 the said child Lakshya has developed the said abnormality of pneumothorax following preoperative administration or induction of anaesthesia medicine. Further, it is also clear that no mechanical defects or equipmental failures or preexisting obvious conditions of the child or his family history was the cause for development of such abnormality, but it is the act of the omission on the part of the accused in taking care while administering anaesthetic medication to the said child and the deficiencies in the procedures and practices to be followed prior to such administration of the anaesthetic medicines. Therefore, it can be concluded that the development of the said abnormality of pneumothorax by said child Lakshya was due to the negligent omission on the part of the accused in taking care and following preanaesthetic processes, procedures, tests and medications. Hence, it can be held that the prosecution has proved the guilt of the accused punishable u/s 338 of IPC 38 C.C.No.3043/2017 beyond all reasonable doubts. Accordingly, this point is answered in the Affirmative.
27. Points No.2: In view of the above discussion and my answer to point No.1, I proceed to pass the following:
ORDER Acting under section 248(2) of Cr.P.C., the accused is held guilty of the offence punishable under 338 of IPC.
In the light of verdicts of Hon'ble Apex Court as well as the High Court of Karnataka with regard to the bar for application of provisions of Probation of Offenders Act, 1958 for the offences relating to negligence leading to death or safety of a person, in the present case as the offence committed by the accused u/s 338 of IPC is also a kind of negligence causing said grievous hurt which may lead 39 C.C.No.3043/2017 to death or harm to said child, this court deems it not proper to extend any benefits of the Provisions of Probation of Offenders Act 1958 to this Accused. Accordingly, the following order is passed on the sentence of the accused.
The accused is convicted for the offence punishable u/s 338 of IPC and sentence to undergo simple imprisonment for six months and also he shall pay fine of Rs.1,000/. In default of payment of fine, he shall undergo additional simple imprisonment for a period of one month.
Office is directed to provide free copy of this order to the accused.
(Dictated to the Stenographer directly on computer, after her typing, corrected, signed and then pronounced by me in open Court this the14th day of October, 2022).
(K.N.Shivakumar) VIII Addl. CMM, Bengaluru 40 C.C.No.3043/2017 ANNEXURE Witness examined for the prosecution :
PW1 : Purushotham s/o Shyamsundar PW2 : Babu Devadar s/o late Joseph PW3 : Nithyashree w/o Muralidhar PW4 : Salak Mery w/o George PW5 : John Victor s/o Yesudas PW6 : Rajani Stephan w/o Stephan PW7 : Dr.R.Raghunandan s/o R.Vasudevareddy PW8 : Dr.Praveen Kumar s/o Srikanteshwara PW9 : Dr.Dayananda V.P. s/o Venkataramaiah PW10: Dr.Shivakmar Shymarao s/o Shymarao PW11: Dr.B.G.Radhunandan s/o Gopalakrishnamurthy Rao PW12: Dr.M.Surendra s/o B.Muniswamy PW13: Dr.Shyla Bhattacharya w/o Dr.Aparn Bharracharya PW14: Shyam M s/o Mahadev Documents marked on behalf of the prosecution:
Ex.P1 : Complaint
Ex.P2 : Spot Mahazar
Ex.P3 : Spot Mahazar
Ex.P4 : Report
Ex.P5 : Report
Ex.P6 : Report
Ex.P7 : FIR
Ex.P8 : Letter - Mallya Hospital
Ex.P9 : Medical Records - 27 pages
41 C.C.No.3043/2017
Witness examined for the defence:
DW1 : Dr.Chandrashekar C.R. s/o Ramakrishnaiah C.N. DW2 : Dr.Huliraj Narayanaswamy s/o Narayanaswam? y ?
DW3 : Dr.Jagadish Chinnappa s/o K.V.Chinnappa (DISCARDED) Document marked on behalf of the defence:
Ex.D1 : Report
Material Objects:
MO1 : Desk
VIII Addl. C. M. M.,
Bengaluru
42 C.C.No.3043/2017
Judgment pronounced in the open court vide separately ORDER Acting under section 248(2) of Cr.P.C., the accused is held guilty of the offence punishable under 338 of IPC.
In the light of verdicts of Hon'ble Apex Court as well as the High Court of Karnataka with regard to the bar for application of provisions of Probation of Offenders Act, 1958 for the offences relating to negligence leading to death or safety of a person, in the present case as the offence committed by the accused u/s 338 of IPC is also a kind of negligence causing said grievous hurt which may lead to death or harm to said child, this court deems it not proper to extend any benefits of the Provisions of Probation of 43 C.C.No.3043/2017 Offenders Act 1958 to this Accused. Accordingly, the following order is passed on the sentence of the accused.
The accused is convicted for the offence punishable u/s 338 of IPC and sentence to undergo simple imprisonment for six months and also he shall pay fine of Rs.1,000/. In default of payment of fine, he shall undergo additional simple imprisonment for a period of one month.
Office is directed to provide free copy of this order to the accused.
VIII Addl. C. M. M. Bangalore