Bombay High Court
Bhupal Malayya Agbattini (In Jail) vs State Of Maharashtra Thr. Pso Police ... on 9 April, 2019
Author: Swapna Joshi
Bench: Swapna Joshi
CRI.APPEAL 406.18.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.406 OF 2018
Bhupal Malayya Agbattini,
Aged 52 years,
Occupation-Medical Practitioner,
R/o. Village Bomkalli,
Chandrapur, Tahsil and District-
Karimnagar, District-Chandrapur. .. Appellant
(In Jail)
.. Versus ..
State of Maharashtra,
Through PSO Police Station, Virur,
Tahsil-Rajura, District-Chandrapur. .. Respondent
..........
Shri A.C. Jaltare, Advocate for Appellant,
Shri M.J. Khan, APP for Respondent-State.
..........
CORAM : MRS. SWAPNA JOSHI, J.
DATED : 09.04.2019.
ORAL JUDGMENT
1] This appeal has been directed against the judgment and order dated 15.05.2018 delivered by the learned Additional Sessions Judge, Chandrapur in ::: Uploaded on - 25/04/2019 ::: Downloaded on - 06/04/2020 02:26:12 ::: CRI.APPEAL 406.18.odt 2 Sessions Case No.03/2017 whereby the learned Additional Sessions Judge has convicted the appellant (hereinafter referred to as 'accused') for the offence punishable under Section 304-II of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six years and to pay a fine of Rs.1000/- in default to suffer simple imprisonment for ten days. The accused was further convicted for the offence punishable under Section 33 of the Maharashtra Medical Practitioners Act, 1961 and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.2000/- in default to suffer simple imprisonment for twenty days. 2] The prosecution case in nutshell can be summarized as under :
Deceased Muktabai Nanaji Satpute and Kamlabai Shankar Kolpakwar were resident of village Lakkadkot, Tahsil-Rajura, District-Chandrapur. The accused was Ayurvedic Medical Practitioner, resident of Bomkalli, Tahsil and District-Karimnagar having dispensary at village Lakkadkot, Tahsil-Rajura, District-Chandrapur. The accused used to visit village Lakkadkot frequently. He used to treat the patients for that area. He used to prescribe the medicines and sometime give injections to the villagers without having the qualification degree and the enrolment with the Maharashtra Medical Council.
It is the case of the prosecution that deceased Muktabai and Kamlabai were not keeping well during 14.7.2016 to 18.7.2016, therefore, they approached the accused for treatment on 18.7.2016 and 20.7.2016 respectively. The accused prescribed the medicines to both of them, so also he administered injections to ::: Uploaded on - 25/04/2019 ::: Downloaded on - 06/04/2020 02:26:12 ::: CRI.APPEAL 406.18.odt 3 deceased Muktabai on 18.7.2016 and Kamlabai on 20.7.2016 on their waists, due to which, the lumps were developed over their waists. Both of them again approached to the accused who in turn prescribed ointments and tablets. Despite of that Muktabai and Kamlabai did not get the relief and the problem aggravated. Deceased Muktabai was taken by the accused to the hospital at Asifabad and thereafter at Kagaznagar, but she did not get the relief, therefore, she was further taken to the hospital of Dr. Prasad at Mancherial, where the doctor operated the said lump, however, Muktabai succumbed to the injuries caused to her.
Kamlabai was taken to General Hospital at Chandrapur where she was treated, however, she did not get any relief, therefore, she was taken to Dr. Poddar hospital where she got operated the said lump, however, she could not survive. Son of Muktabai namely Sanjay Satpute, who was also treated by the accused and was administered the injection on 18.7.2016, also developed the lump. However, he got treated by Dr. Salfale at Chandrapur. Dr. Soitkar operated the lump due to which he was cured and survived. It is the case of the prosecution that the accused administered injection to Nirmala Santosh Satpute, who also developed lump over her waist. She got operated in the hospital of Dr. Soitkar and she survived.
The news about the deaths of Muktabai Nanaji Satpute and Kamlabai Shankar Kolpakwar published in the newspaper namely 'Lokmat Samachar' dated 23.7.2016 which was read by the complainant Dr. Gajendra Mansaram Ahirkar, who is the Assistant Medical Officer being attached to the Primary Health Centre at Tohogaon, so also he received a phone call from his District Health Officer namely Dr. Shriram ::: Uploaded on - 25/04/2019 ::: Downloaded on - 06/04/2020 02:26:12 ::: CRI.APPEAL 406.18.odt 4 Gogulwar. They visited the place of incident. The complainant visited the house of deceased Muktabai and Kamlabai on 24.7.2016. They enquired into the matter and the report was lodged by the complainant on 25.7.2016 at Virur Police Station. On the basis of the said complaint, offence was registered vide Crime No.167/2016 against the accused. Police visited the dispensary of the accused and recorded the spot panchanama. Police seized the medicines and the medical certificate of the accused under seizure panchanama. Police arrested the accused and took charge of the injections at the instance of the accused vide panchanama Exh.98. Police sent the seized articles to the CA office (no report filed). Police recorded the statement of the witnesses. On completion of investigation, charge-sheet came to be filed. The case was committed to the Court of Sessions. Learned Additional Sessions Judge framed the charge. On recording the evidence and hearing both the sides, learned Additional Sessions Judge convicted the accused as aforesaid.
3] I have heard Shri A.C. Jaltare, learned advocate for the appellant and Shri M.J. Khan, learned Additional Public Prosecutor for the respondent-State. With their able assistance, I have gone through the record and proceedings of the case. 4] Learned advocate Shri Jaltare vehemently argued that the learned trial Judge has not considered the evidence led by the prosecution witnesses in its proper perspective and has erroneously convicted the accused, inasmuch as the trial court failed to consider that the accused has in good-faith treated the deceased and other ::: Uploaded on - 25/04/2019 ::: Downloaded on - 06/04/2020 02:26:12 ::: CRI.APPEAL 406.18.odt 5 patients and he had no knowledge as such that due to the administration of the injections, the deaths of both the ladies would cause. He has further submitted that the conduct of the accused shows that he has himself taken both the deceased to various hospitals in order to cure the lump which was created due to injections. Thus, according to learned advocate for the appellant, the accused had no knowledge that the said injections would cause deaths of Muktabai and Kamlabai and therefore he has not committed any offence as such under Section 304-II of the Indian Penal Code. 5] As against this, the learned APP Shri Khan vociferously contended that the act of the accused is not only of sheer negligence but it is more than that. According to learned APP, the accused being Ayurvedic Doctor had knowledge that due to the administration of unsterilised injection death is likely to be caused. Learned APP supported the judgment and order passed by the Trial Judge. 6] In order to consider the rival contentions of both the sides, it would be advantageous to go through the evidence led by the prosecution witnesses. The testimony of PW-1 Dr. Gajendra Ahirkar shows that in the newspaper namely "Lokmat Samachar", dated 23.7.2016, he learnt that two persons died due to administration of injections at village Lakkadkot. He also received a phone call about the said news from his superior authority, who is District Health Officer namely Dr. Shriram Ghogulwar. PW-1 visited the house of both the deceased and made an enquiry into the matter. He learnt that as both the deceased were having pain in their bodies, they took the ::: Uploaded on - 25/04/2019 ::: Downloaded on - 06/04/2020 02:26:12 ::: CRI.APPEAL 406.18.odt 6 treatment from the accused, who administered injections to deceased Muktabai on 18.7.2016 and to deceased Kamlabai on 20.7.2016. The deceased sustained intraglutial at the place where the accused injected and it was abscess and increased severely time to time. PW-1 lodged complaint against the accused at Virur Police Station on 25.7.2016.
7] PW-8 Nanaji Satpute, the husband of deceased Muktabai, has deposed that his wife was suffering from knee pain. The accused visited his house at village Koshtala and examined Muktabai. Accused injected on the waist of his wife in his presence. There was a lump over the waist of his wife where the accused injected the injection. PW-8 informed about the said lump to the accused on the next day when he visited their village. Accused prescribed one ointment for the said lump but his wife did not get any relief. Accused then asked PW-8 to bring his wife to the dispensary at Lakkadkot. Son of Muktabai namely Sanjay took her to the dispensary of the accused at Lakkadkot. Accused referred Muktabai to the hospital at Ashifabad. Accused himself accompanied her to the hospital at Ashifabad. Since the doctors of the hospital at Ashifabad refused to treat her, the accused took her to the hospital at Kagajnagar where the doctor examined her, however, he refused to treat her there. Muktabai was taken to the hospital of Dr. Prasad. The said doctor admitted Muktabai in his hospital. He operated her, however, Muktabai succumbed to her injuries. 8] The deposition of PW-11 Shankar Kolpekwar, the husband of Kamlabai, ::: Uploaded on - 25/04/2019 ::: Downloaded on - 06/04/2020 02:26:12 ::: CRI.APPEAL 406.18.odt 7 shows that Kamlabai was suffering from pain in her knee, therefore, he asked the accused to treat his wife Kamlabai in his hospital. Accordingly, the accused examined Kamlabai and gave injection on her waist. There was a lump over her waist where the accused injected. On informing the accused, he prescribed some ointment and tablet, however, she did not get relief. She was then taken to the hospital of Dr. Potddar at Chandrapur, who operated the said lump. Two to three hours after the said operation, Kamlabai expired.
9] The evidence of PW-12 Sanjay Satpute, who is son of Muktabai, shows that on 18.7.2016 the accused injected him on his waist where the lump was developed. PW-12 then proceeded to the hospital at Dr. Salphale at Chandrapur, who prescribed tablets by which he got some relief. Thereafter, he was admitted in the hospital of Dr. Soitkar, who treated him and operated the said lump. Due to the said treatment, PW-12 got relief.
10] Thus the evidence of aforesaid witnesses clearly indicates that as Muktabai and Kamlabai were having knee pains, for treatment, they approached the accused. The accused injected them on their waists due to which lumps developed. Thereafter the lumps were operated. However, Muktabai and Kamlabai could not survive due to the complications in the lumps. PW-12 luckily survived due to the treatment given by other medical officers.
::: Uploaded on - 25/04/2019 ::: Downloaded on - 06/04/2020 02:26:12 ::: CRI.APPEAL 406.18.odt 8 11] Now coming to the medical evidence, prosecution relied upon the testimony of PW-13 Dr. Anjanayya Vaikuntham and PW-14 Dr. Amal Potdar. The testimony of PW-13 Dr. Vaikuntham shows that on 20.7.2016 the accused had brought a patient by name Muktabai Satpute. She was having fever, restlessness and her left leg was swollen due to infection of abscess of the injection. PW-13 found that there was blood passing through urine and she was suffering from jaundice as well as her w.b.c. count was 25,500 which should be in between 4000 to 11000 in normal range. According to PW-13, septicemia was developed and there was abscess over the left buttock of Muktabai. PW-13 opined that said injection could be abscess due to improper injecting the said injection or non removal of bacterias from the site of the injection by the concerned doctor. PW-13 produced the prescription and discharge summary issued by him Exhs.56 and 57 respectively. Exh.57 issued by PW-13 shows the death of Muktabai on 20.7.2016 at 9.30 pm. Diagnosis was that multiple abscess over left buttock with huge cellulites with septic shock with cardiopulmonary arrest and the disease caused by unsterile injection pricks over left buttock for 5-10 days. Exh.57 makes clear that due to unsterile injection over the left buttock of Muktabai there was huge cellulites which developed into septicemia and resulted into cardiopulmonary arrest.
12] PW-14 Dr. Amal Potdar deposed that on 20.7.2016 he treated Kamlabai. There was cellulites over her buttock which was extended over abdomen and back which was cut and operated by him. He produced the MLC report (Exh.60). According ::: Uploaded on - 25/04/2019 ::: Downloaded on - 06/04/2020 02:26:12 ::: CRI.APPEAL 406.18.odt 9 to him, deceased Kamlabai died due to septicemia which was the result of the intramuscular injection given by the private practitioner. The document (Exh.60) makes clear that the disease was caused by unsterilized injection pricking over the buttock, the disease started five to ten days before. Thus, the evidence of PW-14 makes amply clear that Kamlabai died due to septicemia which was caused due to unsterilised injection pricking over her buttock. The medical evidence indicates that cause of deaths of Muktabai and Kamalabai was septicemia which was caused due to unsterilised injection needle used by the accused.
13] PW-20 Dr. Pradeep Murambikar, who was Medical Director, opined that it was not permissible for the accused to keep the medicines, injection and tablets seized from him, as far as his qualification degree is concerned. He further opined that the injections are known to cause abscesses if due care is not taken. Those injections were administered by the accused. According to him, the accused cannot run medical practice as a Medical Officer. The overall assessment of the evidence led by the prosecution witnesses shows the medical negligence on the part of the accused. 14] In case of Poonam Verma .vs. Ashwin Patel and others, (1996) 4 SCC 332, the Hon'ble Apex Court held that :
34. Apart from the Central Act mentioned above, there is the Maharashtra Medical Council Act, 1965 (46 of 1965) dealing with the registration of medical practitioners and recognition of qualification and medical institutions. Section 2 (d) defines 'Medical Practitioner' or 'Practitioner' as under :
::: Uploaded on - 25/04/2019 ::: Downloaded on - 06/04/2020 02:26:12 ::: CRI.APPEAL 406.18.odt 10
" 2 (d) 'medical practitioner' or 'practitioner' means a person who is engaged in the practice of modern scientific medicine in any of its branches including surgery and obstetrics, but not including veterinary medicine or surgery or the Ayurvedic, Unani, Homoeopathic or Biochemic system of medicine". (emphasis supplied) Admittedly, the accused was not a medical practitioner within the definition of Section 2
(d) of the Maharashtra Medical Council Act, 1965 dealing with the registration of medical practitioners and recognition of qualification and medical institutions.
15] It is not at all disputed that the accused was an Ayurvedic Certificate holder who cannot be termed as a 'medical practitioner' or the 'doctor'. He was not having sufficient qualification. He practiced in allopathy and administered injections to Muktabai and Kamlabai, due to which, cellulites was caused which aggravated into septic shock and resulted into cardiopulmonary arrest. That was the cause of deaths of both the deceased.
16] In case of Poonam Verma .vs. Ashwin Patel and others, (1996) 4 SCC 332, the Hon'ble Apex Court has discussed about the per se :
42. Negligence has many manifestations - it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, willful or reckless negligence or Negligence per se, which is defined in Black's Law Dictionary as under :
Negligence per se: Conduct, whether of action or omission, which may be declared and treated as negligence without any ::: Uploaded on - 25/04/2019 ::: Downloaded on - 06/04/2020 02:26:12 ::: CRI.APPEAL 406.18.odt 11 argument or proof as to the particular surrounding circumstances, either because it is in violation of a statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes."
43. A person who does not have knowledge of a particular system of medicine but practices in that System is a quack and a mere pretender to medical knowledge or skill, or to put it differently, a charlatan.
It was further held that -
Respondent no.1 having practised Allopathy without being qualified in that system was guilty of negligence per se and therefore, appeal against him has to be allowed in consonance with the maxim sic utere tuo ut alienum non loedas (a person is held liable at law for the consequences of his negligence). 17] In the instant case the accused was not registered as a medical practitioner. He was simply a certificate holder in Ayurvedic Medicine. He was under a statutory duty not to enter the field of any other system of medicines as he was not qualified in other system i.e. allopathy. The accused trespassed into a prohibited field and therefore he is liable to be prosecuted under Section 33 of the Maharashtra Medical Practitioners Act, 1961.
18] Section 33 (1) of the Maharashtra Medical Practitioners Act, 1961 contemplates as under :
33. (1) Notwithstanding anything contained in any law for the time being in force or in any judgment, decree or order of any Court, no person other than a medical practitioner whose names is ::: Uploaded on - 25/04/2019 ::: Downloaded on - 06/04/2020 02:26:12 ::: CRI.APPEAL 406.18.odt 12 entered in -
(i) the register maintained under this Act, or
(ii) the register or the list prepared and maintained under the Bombay Homoeopathic and Biochemic Practitioners Act, 1959 or under any other law for the time being in force in relation to the qualifications and registration of Homoeopathic or Biochemic Practitioners in any part of the State, or
(iii) the register prepared and maintained under the Maharashtra Medical Council Act, 1965; or
(iv) the Indian Medical Register prepared and maintained under the Indian Medical Council Act, 1956, shall practise any system of medicine in the State Provided that, the State Government may, by notification in the Official Gazette, direct that subject to such conditions as it may deem fit to impose and the payment of such fees as may be prescribed by Rules, the provisions of this section shall not apply to any class of persons, or to area, as may be specified in such notification.
[(2) Any person, who Acts in contravention of any of the provisions of sub-section (1) shall, on conviction, be punished,--
(a) for the first offence, with rigorous imprisonment for a term which shall not be less than two years but which may extend to five years and with fine which shall not be less than two thousand rupees but which may extend to ten thousand rupees; and
(b) for a second or subsequent offence, with rigorous imprisonment for a term which may extend to ten years and with the fine which may extend to twenty-five thousand rupees:
Provided that, when the contravention is continued after the order of conviction, a further fine which may extend to five hundred rupees, for each day of continuation of such contravention, may be imposed.) ::: Uploaded on - 25/04/2019 ::: Downloaded on - 06/04/2020 02:26:12 ::: CRI.APPEAL 406.18.odt 13 19] The accused has practised in contravention of the provisions of sub-
section (1), therefore, he is liable for conviction. The assessment of the evidence on record shows that the accused has committed an offence under Section 304-A of the Indian Penal Code, as he has acted negligently, though the accused was not having a degree in Allopathy and though he was not a medical practitioner still he treated the deceased by injecting the injections. In view thereof, it is held that the accused has committed the offence under Section 304-A of the Indian Penal Code. The learned trial Judge should have considered the evidence led by the prosecution witnesses in its right perspective. In the instant case, the accused did not have a knowledge that the death was likely to be caused due to the act of administering unsterilised injections. It appears that the accused in good-faith has treated both the deceased to relieve them from knee pain from which they were suffering. The conduct of the accused shows that the accused has taken Muktabai from one doctor to the other to save her life, however, unfortunately she succumbed to her injuries and died due to septicemia which was developed due to piercing of the injections. There is no convincing evidence on record to show that the accused had a knowledge that due to piercing of the injection, lump would be created, due to which, septicemia would cause. He had no knowledge that the said injury was likely to cause death.
20] In Mahadev Prasad Kaushik .vs. State of U.P. and another, AIR 2009 SC 125, it is held that :
23. Plain reading of the above section makes it clear that it is in two parts. The first part of the section is generally referred to as ::: Uploaded on - 25/04/2019 ::: Downloaded on - 06/04/2020 02:26:12 ::: CRI.APPEAL 406.18.odt 14 "Section 304, Part I", whereas the second part as " Section 304, Part II". The first part applies where the accused causes bodily injury to the victim with intention to cause death; or with intention to cause such bodily injury as is likely to cause death. Part II, on the other hand, comes into play when death is caused by doing an act with knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death.
24. The Makers of the Code observed;
"The most important consideration upon a trial for this offence is the intention or knowledge with which the act which caused death, was done. The intention to cause death or the knowledge that death will probably be caused, is essential and is that to which the law principally looks. And it is of the utmost importance that those who may be entrusted with judicial powers should clearly understand that no conviction ought to take place, unless such intention or knowledge can from the evidence be concluded to have really existed".
25. The Makers further stated;
"It may be asked how can the existence of the requisite intention or knowledge be proved, seeing that these are internal and invisible acts of the mind? They can be ascertained only from external and visible acts. Observation and experience enable us to judge of the connection between men's conduct and their intentions. We know that a sane man does not usually commit certain acts heedlessly or unintentionally and generally we have no difficulty in inferring from his conduct what was his real intention upon any given occasion".
21] Considering the contentions canvassed by the learned counsel for both the parties, I am of the considered opinion that the appeal needs to be partly allowed. Hence the following order :
ORDER [1] Criminal Appeal No.406/2018 is partly allowed.
::: Uploaded on - 25/04/2019 ::: Downloaded on - 06/04/2020 02:26:12 ::: CRI.APPEAL 406.18.odt 15 [2] The accused is convicted for the offence punishable under Section 304-A of the Indian Penal Code and sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs.1,000/- in default to suffer simple imprisonment for ten days. [3] The accused is further convicted for the offence punishable under Section 33 of the Maharashtra Medical Practitioners Act, 1961 and sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs.2,000/- in default to suffer simple imprisonment for 20 days.
[4] The accused is directed to pay the compensation of Rs.75,000/- each to the legal heirs of deceased Muktabai and Kamlabai. The compensation amount be deposited in this Court within a period of three weeks. The Superintendent of Police, Chandrapur is directed to verify and inform the legal representatives of Muktabai Nanaji Satpute and Kamlabai Shankar Kolpakwar about this order.
[5] Registry is directed to accept the amount of Rs.75,000/- each, total amount of Rs.1,50,000/- from the accused by demand draft.
[6] The accused is in jail. Both the sentences shall run concurrently, so set off be given to the accused.
JUDGE Gulande ::: Uploaded on - 25/04/2019 ::: Downloaded on - 06/04/2020 02:26:12 :::