Punjab-Haryana High Court
Parveen Siwach vs State Of Haryana on 15 October, 2018
Author: Surinder Gupta
Bench: Surinder Gupta
CRA-S-790-SB of 2018 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
CRA-S-790-SB of 2018
Date of Decision: 15.10.2018
Parveen Siwach ....Appellant
VERSUS
State of Haryana ....Respondent
CORAM:- HON'BLE MR. JUSTICE SURINDER GUPTA
Present: Mr. Aditya Sanghi, Advocate
for the appellant.
Mr. Deepak Grewal, DAG, Haryana.
Mr. Sanjeev Kodan, Advocate
for the complainant.
*******
SURINDER GUPTA, J.(Oral)
This is appeal against judgment dated 05.02.2018 and order of conviction dated 08.02.2018, whereby appellant was convicted and sentenced as follows:-
Sr. Offence Imprisonment Fine In default of payment No. under Section of fine 1 304-II IPC Rigorous imprisonment `10,000/- Further undergo for seven years rigorous imprisonment for one year 2 420 IPC Rigorous imprisonment `5000/- Further undergo for five years rigorous imprisonment for six months 3 201 IPC Rigorous imprisonment `5000/- Further undergo for three years rigorous imprisonment for six months 4 15 of Indian Rigorous imprisonment `1000/- Further undergo Medical for one year rigorous imprisonment Council Act, for one month 1956
2. It was ordered that all the substantive sentences shall run concurrently and the period of imprisonment already undergone by the For Subsequent orders see CRM-38290-2018 1 of 18 ::: Downloaded on - 11-11-2018 06:47:06 ::: CRA-S-790-SB of 2018 -2- appellant shall be set off against the substantive sentence awarded to him. BRIEF FACTS:-
3. FIR (Ex. P-1) was registered on the complaint of Parveen (PW-1), wherein he has stated that his wife Nanhi Devi (later referred to as the 'deceased') aged 20 years was in family way and was under treatment of Sadhu Ram Memorial Hospital, Barwala. On 12.09.2010, he took his wife for check up and was recommended ultrasound by Dr. Smt. Parveen Siwach (appellant). He got the ultrasound done from Janta Hospital, Barwala and the appellant after seeing the report informed the complainant that deceased and child in the womb were well. They took medicines and went home.
4. On 13.09.2010, the deceased felt pain and was brought to Sadhu Ram Memorial Hospital, Barwala by complainant, his mother and mother-in-law. The delivery was performed at about 09.00 p.m. and after the delivery the appellant apprised complainant that deceased and the newly born baby were alright. After sometime she declared the death of the child and immediately thereafter, appellant discharged the deceased and turned her alongwith family members out of the hospital and closed the shutters.
The death of newly born baby was due to negligence on the part of the appellant. When complainant reached at home at about 11.00 p.m. the condition of his wife deteriorated and they again contacted the appellant, who refused to bring the deceased to her hospital and advised to take the deceased to Janta Hospital. At about 01.00 a.m., the deceased was shifted to Janta Hospital, Barwala. The doctor there got certain tests done from Nalwa Laboratory and refused to admit the patient and referred her to Churamani Hospital, Hisar. Feeling perplexed, complainant took the deceased to Sawant Hospital, Hisar, where Dr. Satya Sawant started her treatment but on For Subsequent orders see CRM-38290-2018 2 of 18 ::: Downloaded on - 11-11-2018 06:47:07 ::: CRA-S-790-SB of 2018 -3- seeing wounds she also felt perplexed and immediately called for the blood and re-stitched the wounds as the appellant had not given stitches properly and there was excessive bleeding. Dr. Sawant apprised complainant that condition of the deceased was serious and she required ventilator, as such, she be shifted to Sarvodaya Hospital or Jindal Hospital, Hisar. Complainant immediately shifted his wife to Sarvodaya Hospital where she was treated by Dr. Kalra, who apprised the complainant that due to excessive bleeding, kidney of patient had stopped functioning and it was difficult to save her. On 16.09.2010 at about 11.00 p.m., she died and was brought to their village on 17.09.2010 and cremated.
5. Complainant has alleged that his wife and newly born baby had died due to negligence of appellant as she had not provided them proper treatment. She was also not possessing the medical degree as mentioned on her letterhead.
6. On the complaint, opinion of Civil Surgeon, Hisar was sought, who submitted his report on 20.09.2010. After taking opinion of Deputy District Attorney, Hisar, FIR under Section 304-A of Indian Penal Code (for short 'IPC') was registered against Dr. Parveen Siwach (later referred to as 'the appellant'). She was arrested on 09.12.2011 and on completion of investigation challan was presented in Court. Initially charges for offence punishable under Section 304-A IPC were framed against the appellant and thereafter, on the application of prosecution case was committed to the Court of Sessions vide order dated 16.02.2016.
7. Finding a prima facie case under Sections 304 Part II, 420 and 201 IPC and 15 of Indian Medical Council Act, 1956, the appellant was charge-sheeted to which she pleaded not guilty and claimed trial.
For Subsequent orders see CRM-38290-2018 3 of 18 ::: Downloaded on - 11-11-2018 06:47:07 ::: CRA-S-790-SB of 2018 -4-
8. In support of its case, prosecution examined 29 witnesses out of whom material witnesses including complainant, mother, mother-in-law and father-in-law of deceased and some other relatives, to put it precisely, PW-1 Parveen, husband of deceased, PW-2 Rajbala, mother, PW-3 Dilbag, father- in-law, PW-4 Vinod, brother-in-law of deceased, PW-5 Baljeet, PW-6 Banwari, PW-9, Rajpati, mother-in-law of deceased, PW-21 Surender Singh, all turned hostile and did not support the case of prosecution to the effect that delivery of deceased was conducted by appellant. However, Veer Bhan, father of deceased, who appeared as PW-8, supported the case of prosecution to the extent that his daughter (deceased) was admitted in the hospital of appellant, where she was administered an injection. The prosecution also produced doctors of hospital, where deceased was admitted and treated after delivery and other doctors, who gave expert opinion about cause of death of Nanhi Devi, besides examining the formal witnesses and investigating officer. On conclusion of evidence of prosecution, statement of appellant under Section 313 Cr.P.C. was recorded, wherein she denied allegations levelled against her and pleaded her false implication. She stated in her defence that she has been falsely implicated and has no concern whatsoever with the offence in question.
9. Learned trial Court framed following questions for consideration:-
"Whether appellant is a qualified doctor or she was illegally practicing as a doctor?"
10. On the basis of material on record, it was held that "from aforesaid evidence, it is clearly proved on record that delivery case of Nanhi Devi was handled in Sadhu Ram Memorial Hospital, Barwala by accused For Subsequent orders see CRM-38290-2018 4 of 18 ::: Downloaded on - 11-11-2018 06:47:07 ::: CRA-S-790-SB of 2018 -5- Parveen Siwach".
11. It is not disputed that appellant is not qualified doctor to handle delivery cases or to practice and prescribe allopathic medicines.
12. While pondering over the question of witnesses turning hostile, learned trial Court observed as follows:-
".......It is settled proposition of law that the statements of witnesses are to be seen in totality and merely because some of the witnesses have turned hostile, does not mean that his statement cannot be relied upon. The solemn duty of the court is to separate the chaff from the grain. In the present case, had there was no involvement of accused in this incident, then there was no occasion for the husband of accused to convene panchayat and impress upon complainant and other witnesses for compromise. Almost of (sic all) the private witnesses have admitted about the factum of convening panchayat by husband of accused. It is really a dangerous trend that such serious issues are taken to panchayat for settlements. Hence, such act of accused and her husband is against the principles of law."
13. Learned trial Court observed that deceased has expired due to failure of multi organs, which was the result of excessive bleeding from vagina i.e. result of gross negligence on part of doctor who handled her delivery case and it was proved on record that on 13.09.2010, delivery case of deceased was handled by appellant. It was also proved on record that appellant was authorized to practice in Electro-Homeopathy System of Medicine but was not authorized to practice medicine (allopathic). She conducted delivery of deceased in violation of provisions of Section 15 of For Subsequent orders see CRM-38290-2018 5 of 18 ::: Downloaded on - 11-11-2018 06:47:07 ::: CRA-S-790-SB of 2018 -6- Indian Medical Council Act, 1956.
14. I have heard learned counsel for the appellant, learned State counsel and learned counsel for complainant and perused the lower Court record with their assistance.
15. Learned counsel for the appellant has argued that as per case of prosecution, appellant had conducted delivery of wife of complainant and newly born baby died or was stillborn and wife of complainant had also died due to negligence on the part of appellant in conducting the delivery. Neither of witness examined by the prosecution has deposed that delivery of wife of complainant was conducted by the appellant. An enquiry to this effect was also conducted by board of doctors which in its report (Ex. P-26) recorded the finding that delivery of the deceased took place in some private nursing home but from the evidence produced during enquiry it was not proved as to which doctor had conducted the delivery. As per report, the appellant had advised the deceased for getting ultrasound done but she was not competent to give this advise as she was not a doctor. The offence under Section 304 (II) IPC, as such, is not proved against the appellant. All the prosecution witnesses except father of deceased have turned hostile. Even father of deceased while appearing as PW-8 has not stated that delivery of his daughter was conducted by the appellant. He has stated that his daughter was admitted in hospital of the appellant where she was administered an injection by the appellant. All the remaining witnesses examined by the prosecution including husband (complainant), mother, mother-in-law, father-in-law and other relatives of deceased have not supported the case of prosecution and turned hostile. Regarding the cause of death of deceased, there is no postmortem report. Even postmortem of child was also not got For Subsequent orders see CRM-38290-2018 6 of 18 ::: Downloaded on - 11-11-2018 06:47:07 ::: CRA-S-790-SB of 2018 -7- conducted. It is proved on file that all the deliveries in Sadhu Ram Memorial Hospital were being conducted by Dr. Neeru, Gynecologist and not by the appellant. The documents relied upon by Ist Appellate Court were not duly proved or can be read in evidence to prove that the deceased was admitted in hospital of the appellant and she had conducted her delivery.
16. Learned trial Court has relied upon OPD slip (Ex. P-42), which is not signed by the appellant. Reliance has also been placed on progress chart (Ex. P-32) while observing that in the progress chart, it is mentioned that delivery of Nanhi Devi (deceased) had taken place at Sadhu Ram Memorial Hospital, Barwala. There is no recital in Ex. P-32 that delivery had taken place at Sadhu Ram Memorial Hospital. In the absence of any evidence to prove the guilt of appellant, learned trial Court has committed grave error while convicting and sentencing the appellant for offences punishable under Sections 304 Part II, 420 and 201 IPC and 15 of Indian Medical Council Act, 1956.
17. Learned State counsel has argued that there is no denial of the fact that the appellant had referred Nanhi Devi (deceased) for ultrasound, which shows that she had been looking after her delivery case. She was not competent to conduct delivery as such had not maintained any register of patients, who came for delivery in her hospital. Complainant had no reason to falsely implicate her. Using her money power and influence she has won over all the prosecution witnesses and it is evident from the fact that all the prosecution witnesses, who turned hostile, have stated that a panchayat was held in village where the matter was compromised. This shows that police has rightly recorded the statements of prosecution witnesses. The appellant, For Subsequent orders see CRM-38290-2018 7 of 18 ::: Downloaded on - 11-11-2018 06:47:07 ::: CRA-S-790-SB of 2018 -8- in order to avoid her liability, had taken Dr. Neeru (PW-10) on her panel to show that deliveries in her hospital were being conducted by her. However, delivery of the deceased was conducted by the appellant herself despite the fact that she was neither competent nor having expertise. Both the child and mother died because of her negligence. Nanhi Devi (deceased) had died because of excessive bleeding after the delivery as cuts applied for taking the baby out were not properly stitched. On realizing her failure, she immediately discharged the deceased and asked her relatives to take her to other hospital. Even in the raid conducted under the orders of Civil Surgeon, allopathic medicines were found stored in her hospital. Being a homeopathic doctor, appellant was not authorized to keep allopathic medicines.
18. It is a case where a young lady had lost life due to lapse on the part of doctor, who conducted her delivery. Question which arises for consideration is whether prosecution has proved on file that appellant had handled the delivery of deceased?
19. First charge framed against the appellant for offence punishable under Section 304 Part II, IPC is as follows:-
"That on 13.09.2010 in the area of Police Station, Barwala, you the above named accused while working as a BEMS Doctor and posing to be a qualified doctor knowing well that you were not qualified to do so, took delivery case of Nanhi Devi w/o Parveen R/o Kaparo, District Hisar which resulted into the death of newly born child and subsequently of mother Nanhi Devi. Thus, you have thereby committed culpable homicide not amounting to murder, causing the death of above For Subsequent orders see CRM-38290-2018 8 of 18 ::: Downloaded on - 11-11-2018 06:47:07 ::: CRA-S-790-SB of 2018 -9- named and thereby committed an offence punishable under Section 304 (II) of IPC and within my cognizance."
20. The most vital issue to be looked into while considering the aforesaid charge is as to whether the appellant handled delivery case of Nanhi Devi (deceased), which resulted in her death as well as death of newly born child? The prosecution examined witnesses to prove this fact, who all turned hostile.
21. PW-1 Parveen, husband of deceased-Nanhi Devi has stated in his statement as follows:-
"....I am (sic was) married in village Badhawad and Nanhi Devi was my wife and was 20 years of age and she was in a family way. About ten years ago she had gone to Barwala in a hospital alongwith me. We had taken the medicines and had returned back. After about two months my wife was to deliver a child and my family members had taken her to Barwala in a hospital and she had delivered a child. The child and my wife died thereafter. I have seen accused present in the Court. I had not met her prior nor do I know her."
22. Rajbala, mother of the deceased, appeared as PW-2 and has stated as follows:-
"......My daughter was in a family way and we had brought her to a hospital at Barwala for delivery. I do not remember the name of the hospital. I do not remember anything further. My daughter and her child had died later. I had gone back to my village for looking after my animals. I have seen accused present in the Court but I do not know her."
For Subsequent orders see CRM-38290-2018 9 of 18 ::: Downloaded on - 11-11-2018 06:47:07 ::: CRA-S-790-SB of 2018 -10-
23. Dilbag father-in-law of deceased-Nanhi Devi while appearing as PW-3 has stated as follows:-
"............My (sic son) Parveen was married to Nanhi Devi. My daughter-in-law was in a family way and we had brought her to a hospital at Barwala for delivery. We had taken back our daughter-in-law to the village after the delivery but later she developed complications and died in the hospital at Hisar after few days. I have seen accused present in the Court but I do not know her."
24. Vinod, brother-in-law of deceased, has also stated that the deceased was brought to a hospital at Barwala. He has also not named the hospital in which the deceased was admitted for delivery. Baljeet, uncle-in- law of deceased while appearing as PW-5, has also not deposed that the deceased was taken to hospital of the appellant. Both PW-4 Vinod and PW- 5 Baljeet were declared hostile.
25. PW-6 Banwari also did not support the prosecution case. Rajpati (PW-9), mother-in-law of the deceased, has stated that the deceased was brought to a hospital for delivery but has not named the hospital or has stated that delivery was conducted by the appellant. PW-15 Suresh also resiled from his statement made to the police that deceased was brought to Sadhu Ram Memorial Hospital for delivery.
26. The only witness, who has deposed about treatment of Nanhi Devi by the appellant, is Veer Bhan, father of the deceased, who while appearing as PW-8 has stated as follows:-
"............On 11.09.2010, I was at Barwala and I received a telephone call from my daughter and she told that I am (sic she For Subsequent orders see CRM-38290-2018 10 of 18 ::: Downloaded on - 11-11-2018 06:47:07 ::: CRA-S-790-SB of 2018 -11- was) in Sadhu Ram Memorial Hospital and called me to meet her. I met my daughter and my daughter did not tell anything about the quarrel nor she told me that she had been beaten.
Police recorded my statement in this regard. My daughter was well at that time when I met her. She was given injections and her health deteriorated and she became unconscious. Thereafter, she was taken to Hisar and was got admitted at Hisar. The doctors told that they cannot assure of her good health. On 16.09.2010, my daughter died. Dr. Parveen Siwach present in the court today had given injections to my daughter, due to which, she died. I was perplexed after death of my daughter............"
27. Even this witness has nowhere stated that delivery of deceased- Nanhi Devi, his daughter, was conducted in Sadhu Ram Memorial Hospital and that it was conducted by the appellant. The fact proved from his statement is that the appellant had given injections to his daughter due to which she died. None of the other prosecution witness has deposed that deceased was admitted for delivery in Sadhu Ram Memorial Hospital, Barwala or her delivery was conducted by appellant.
28. The prosecution relied on the report of board of doctors (Ex. P-26) about cause of death of deceased and her newly born baby. The enquiry committee comprising of three doctors in its report has observed that it could not find any evidence that delivery of the deceased was conducted in Sadhu Ram Memorial Hospital, Barwala. Even complainant party has not produced any document in this regard during enquiry. In the delivery register of Sadhu Ram Memorial Hospital, there was no entry of For Subsequent orders see CRM-38290-2018 11 of 18 ::: Downloaded on - 11-11-2018 06:47:07 ::: CRA-S-790-SB of 2018 -12- admission and delivery of the deceased. The board of doctors observed that appellant on prescription slip dated 12.09.2010 had advised ultrasound of the deceased despite the fact that being NEHM she was not competent to recommend ultrasound test. The appellant had even admitted that she was working as assistant of doctor in the hospital and all the deliveries in Sadhu Ram Memorial Hospital were conducted by Dr. Neeru Chahal. In opinion of medical board, possible reason for death of Nanhi Devi as per statements of Dr. Satya Sawant, Sawant Hospital; Dr. Seema, Anant Ram Janta Hospital Barwala; and Dr. Sarita Kalra, Sarvodya Multi-Specialty Hospital Hisar, could be "postpartum haemorrhage (PPH) leading to disseminated intravascular coagulation (DIC) with renal failure and respiratory failure." The medical board was of the opinion that delivery was conducted in some hospital at Barwala but it was not proved before it as to which doctor was negligent in conducting the delivery.
29. Confronted with above evidence, where all the material witnesses have turned hostile, learned trial Court while recording finding that the deceased was under the treatment of doctor of Sadhu Ram Memorial Hospital, Barwala has observed in para 47 of the judgment, as follows:-
"47. Now it is to be seen in which hospital, Nanhi Devi was admitted as a delivery case. As discussed above, PW-1 complainant Parveen, PW-2 Rajbala, PW-3 Dilbag, PW-4 Vinod, PW-5 Baljeet, PW-6 Banwari and PW-9 Rajpati though deposed hostile testimony but these witnesses have admitted the fact that on 13.09.2010 Nanhi Devi was admitted in some hospital at Barwala For Subsequent orders see CRM-38290-2018 12 of 18 ::: Downloaded on - 11-11-2018 06:47:07 ::: CRA-S-790-SB of 2018 -13- for delivery......."
30. Firstly, I take statement of Dr. Neeru Chahal recorded during inquiry (Ex. P-22), wherein she has stated that on 12.09.2010, Parveen Siwach (appellant) had informed her on telephone that deceased-Nanhi Devi had come to her hospital and was sent for ultrasound. However, from this statement of Dr. Neeru Chahal it cannot be inferred that on next day i.e. 13.09.2010, Nanhi Devi was brought to Sadhu Ram Memorial Hospital and her delivery was conducted by the appellant.
31. Some of the observations recorded by the trial Court in para 47 appear to be not correct as per record. It was observed in para 47 that "though PW-14 Dr. Seema has not specifically stated about the name of hospital where delivery of patient Nanhi Devi was done but from the document Ex. P-32 which is progress chart of patient, it has been mentioned that patient gave birth to a baby at Sadhu Ram Memorial Hospital. Moreover, the fact that Nanhi Devi was under treatment of doctor of Sadhu Ram Memorial Hospital, Barwala get strength from document Ex. P-40 which is OPD slip of Nanhi Devi dated 21.03.2010.........."
32. I have seen progress chart of the patient (Ex. P-32) and have also taken assistance of learned State counsel to read this document which nowhere find mention that Nanhi Devi had given birth to a baby at Sadhu Ram Memorial Hospital. This document shows that patient was brought in Janta Hospital in state of unconsciousness with history of stillborn baby at some other hospital. It appears that learned trial Court has misread this document while making above observation. I have also seen the prescription slip dated 21.03.2010 (Ex. P-40). Firstly, it is not proved that this prescription slip was issued by the appellant and secondly, this is a For Subsequent orders see CRM-38290-2018 13 of 18 ::: Downloaded on - 11-11-2018 06:47:07 ::: CRA-S-790-SB of 2018 -14- prescription slip of the period six months prior to the delivery and death of Nanhi Devi, as such, cannot be connected with handling or mishandling of delivery of deceased by the appellant. The investigating officer has not obtained any record regarding this delivery or has got compared prescription slip (Ex. P-40) with handwriting of appellant.
33. Now I come to testimony of PW-8 Veer Bhan, father of deceased, who has stated that on 11.09.2010 i.e. two days prior to delivery of deceased he had received a telephonic call from his daughter, who told that she was admitted in Sadhu Ram Memorial Hospital and called him to meet her. He met her daughter, who was well at that time. He has not stated that delivery of his daughter was conducted on 13.09.2010 in Sadhu Ram Memorial Hospital. It is not the case of prosecution that from 11.09.2010 to 13.09.2010, the deceased remained admitted in that hospital. He has stated that his daughter was given injection and her health deteriorated and she became unconscious. The only incriminating evidence, which has come in the statement of this witness is that "Dr. Parveen Siwach........had given injections to my daughter due to which she died." He has stated that in- laws of the deceased got her admitted in the hospital, where she was being administered drip. His other daughter, namely, Guddi was with the deceased. Said Guddi has neither been cited as witness nor examined by the prosecution.
34. From the above discussion, it is apparent that reliance of trial Court on testimony of PW-8 Veer Bhan and document (Ex. P-32) to establish that delivery of deceased was conducted by Sadhu Ram Memorial Hospital is not correct interpretation of the record and evidence on file. The prosecution has relied on the testimony of husband, mother, parents-in-law For Subsequent orders see CRM-38290-2018 14 of 18 ::: Downloaded on - 11-11-2018 06:47:07 ::: CRA-S-790-SB of 2018 -15- and other relatives of husband of deceased to prove the charge that delivery of the deceased was conducted by the appellant. However, none of them has supported the case of prosecution. No evidence has come on file as to in which hospital the deceased was taken and who conducted her delivery. She was taken from her matrimonial house to Janta Hospital after her health condition deteriorated.
35. It has come on record that husband of appellant convened a panchayat and compromise was got effected by panchayat. Husband of deceased has also got recorded his statement that he arrived at a compromise with the appellant and does not want to proceed with this case. To similar effect is the statement of appellant. This fact has also come in statements of almost all the material witnesses that a compromise between parties has taken place. PW-1 Parveen has stated that he has compromised the matter with accused in panchayat. The family members of the appellant including her husband satisfied the panchayat with the record of hospital that the deceased was not admitted in their hospital. As members of panchayat were satisfied with their explanation, complainant, compromised the matter. To similar effect is the statement of PW-3 Dilbag, PW-4 Vinod, PW-5 Baljeet and PW-6 Banwari.
36. The question, which arises for consideration is that even if the appellant has effected the compromise with husband of the deceased and due to compromise the witnesses have turned hostile, whether there is any evidence on record to prove the offence punishable under Section 304 (II) IPC against the appellant? In the absence of any oral, documentary or circumstantial evidence, the finding that appellant conducted the delivery of the deceased and that death of the deceased and her newly born baby was For Subsequent orders see CRM-38290-2018 15 of 18 ::: Downloaded on - 11-11-2018 06:47:07 ::: CRA-S-790-SB of 2018 -16- due to mishandling of delivery by the appellant, cannot be drawn merely on the basis of surmises. It is one of the most unfortunate case, where prosecution has not been able to prove as to where and by whom delivery of the deceased was conducted and who is responsible for the death of a young lady and her new born baby. The most unfortunate part of the matter is the testimony of mother of the deceased, who has not disclosed the hospital where her daughter was admitted for delivery. Even husband, mother-in- law, father-in-law, brother-in-law, uncle-in-law and other persons, who initially supported the prosecution case in their statements under Sections 161 Cr.P.C., have turned hostile. When none of the prosecution witness is supporting the case of prosecution, finding recorded by learned trial Court that delivery of the deceased is proved to have been handled by the appellant is not sustainable. The charge for offence punishable under Sections 304 Part II IPC is not proved against the appellant and findings of the trial Court to this effect are set aside and consequent is the fate of charge for offence punishable under Section 201 IPC. Learned trial Court has also convicted the appellant of the charge punishable under Section 420 IPC. However, there is no evidence on record to prove that the appellant made any false representation to family members of the deceased that she is a qualified doctor. In the absence of any evidence on this score, conviction of appellant for offence under Section 420 IPC is also not sustainable.
37. The appellant was also charge-sheeted for offence punishable under Section 15 of the Indian Medical Council Act, which require that no person other than a medical practitioner enrolled on a State Medical Register shall practice medicines. Admittedly, the appellant is not a medical practitioner. She is holding a certificate of Naturo Electro Homeopathy For Subsequent orders see CRM-38290-2018 16 of 18 ::: Downloaded on - 11-11-2018 06:47:07 ::: CRA-S-790-SB of 2018 -17- Medicos of India (N.E.H.M.). She was registered with N.E.H.M. New Delhi after completing six months of internship. It is proved on file that she had prescribed ultrasound for the deceased and medical board in its report (Ex. P-26), has observed that she was not competent to recommend ultrasound. Even Dr. Neeru Chahal had admitted that appellant had apprised her on telephone that she had sent the deceased for ultrasound on 12.09.2010. PW-8 Veer Bhan has also stated that appellant had given injections to her daughter in her hospital. Though, it is not proved that injection was given prior to delivery or later on but this fact is proved that the appellant despite not being a medical practitioner had administered injection to the deceased. Dr. Ashok Chaudhary, Deputy Civil Surgeon, Hisar with his team had raided Sadhu Ram Memorial Health Centre, Barwala. They found 9/10 patients sitting in OPD and 7-8 patients were being treated in hospital and were being administered glucose drips, injections and allopathic medicines. He prepared report in this regard and also recorded statements of patients. He found allopathic medicines in the hospital and took sample, which were seized by Drug Control Officer as per rules and who gave report (Ex. P-63 and Ex. P-64).
38. From the above evidence, it is proved that appellant was practicing as a medical practitioner in violation of provisions of Section 15 of the Indian Medical Council Act, 1956 and learned trial Court has rightly held this charge as duly proved against the appellant.
39. As a sequel of my above discussion, this appeal is partly accepted and conviction and sentence awarded to the appellant for offence punishable under Sections 304 (II), 420 and 201 IPC is set aside. Conviction of appellant for offence punishable under Section 15 of the Indian Medical For Subsequent orders see CRM-38290-2018 17 of 18 ::: Downloaded on - 11-11-2018 06:47:07 ::: CRA-S-790-SB of 2018 -18- Council Act is, however, maintained.
40. Keeping in view the fact that a person, who is not a qualified doctor, if treats and prescribes medicines for a patient, he plays with his life, as such, quantum of sentence awarded to the appellant calls for no interference and is maintained.
41. Before parting with this judgment, it will be relevant to take note of the fact that it is a case where husband, mother, parents-in-law, brother-in-law and other witnesses have turned hostile and resiled from their statements made to the police under Section 161 Cr.P.C. and have played with criminal justice system. They have deliberately concealed to disclose as to where delivery of Nanhi Devi had taken place and who had handled it. Nanhi Devi aged about 20 years was taken to a hospital, where she delivers a child, who dies and she also died because of negligence of doctor, who handled her delivery, but strangely enough, the husband, in-laws and even mother of deceased chose not to disclose name of doctor, who handled her delivery and hospital, where she was admitted. It is evident that these all witnesses resiled from their statements under a settlement, as such, are required to be dealt with as per provisions of law for perjury. Trial Court/successor Court is directed to take up file of the case and initiate legal action against witnesses, who resiled from their statements made to police.
42. The appeal is disposed off in above terms.
43. Copy of this judgment be conveyed to trial Court/successor court and Superintendent, Central Jail No. 2, Hisar for information.
October 15, 2018 ( SURINDER GUPTA )
jk JUDGE
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
For Subsequent orders see CRM-38290-2018
18 of 18
::: Downloaded on - 11-11-2018 06:47:07 :::