Jharkhand High Court
Dr. Kiran Kaushal vs The State Of Jharkhand on 12 April, 2022
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1547 of 2019
Dr. Kiran Kaushal, aged about 55 years wife of Koshlendra Kumar,
Resident of village Kalyandih, P.O. Pachamba, P.S. and District-Giridih
.... ...Petitioner
Versus
1. The State of Jharkhand
2. Anita Devi, wife of Sri Sunil Kumar Sharma, resident of village
Sonbad, Ghordamba, P.O. and P.S. Rajdhanwar, District-Giridih
..... ...Opp. Parties
--------
CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
------
For the Petitioner : Mr. Nagmani Tiwary, Advocate Mr. Amit Kumar Verma, Advocate For the State : Mr. Jitendra Pandey, A.P.P. For the O.P. No. 2 : Mr. Vishal Kumar, Advocate ..........
10/ Dated:-12.04.2022
1. Heard Mr. Nagmani Tiwary, learned counsel for the petitioner, Mr. Jitendra Pandey, learned counsel for the State and Mr. Vishal Kumar, learned counsel for the State.
2. This petition has been filed for quashing entire criminal proceedings pertaining to Protest-cum-Complaint Petition CC No. 742 of 2016 including the order taking cognizance dated 30.07.2018 whereby cognizance has been taken under sections 307 and 420 I.P.C. against the petitioner, pending in the Court of learned C.J.M., Giridih.
3. The O.P. No. 2 has filed complaint case alleging therein that she was suffering from pain in abdomen and upon instruction of the doctor Ultrasound was done on 20.03.2010 at Lalpur Ultrasound Centre, Ranchi wherein both kidneys were normal. It is alleged that after two months again pain started wherein she met the petitioner and was advised operation which was done. However, pain continued and the complainant was financially exploited from 01.06.2010 to 09.05.2011 on account of treatment. 2 It is further alleged that the pain became more and she started problem in urinating and on 09.10.2013 when ultrasound was done at Nav Ultrasound Krishna Nagar, Giridih it was revealed that the complainant did not have left kidney. Repeat ultrasound was occasioned on 21.03.2013 and 24.10.2013 at Ranchi and Dhanbad which testified the said fact. It is alleged that prior to operation, both kidneys were normal and after operation left kidney was missing which indicates that the petitioner has taken out the left kidney. It was alleged that no further operation was occasioned by the complainant elsewhere. It is alleged that subsequently complaint case was lodged which was sent for lodging of F.I.R. pursuant thereto Nagar P.S. Case No. 55/2015 was lodged. It is alleged that only to help the petitioner, wrong report was submitted.
4. Mr. Nagmani Tiwari, learned counsel for the petitioner submits that initially complaint was filed by the O.P. No. 2 which was referred to under section 156(3) to the concerned police station for institution of F.I.R. and pursuant thereto police submitted final form in which petitioner was not sent up for trial. He further submits that O.P. No. 2 was called by the learned court by way of issuing notice pursuant thereto O.P. No. 2 filed protest-cum- complaint petition before the concerned court and produced enquiry witnesses including herself and on the basis of same learned court took cognizance under sections 307 and 420 of the Indian Penal Code. He further submits that the operation of hysterectomy of the O.P. No. 2 was conducted in the year, 2010 by the petitioner and the complaint was filed in the year 2014 about delay of three years. He further submits that the complainant has approached the Deputy Commissioner, Giridih pursuant to that 3 Deputy Commissioner has constituted 3-Men Expert Committee to examine the facts in which Dr. (Mrs.) Rekha Kumari, M.O. SH, Giridih, Dr. Nitya Nand Mandal, MO, SH, Giridih and Dr. (Mrs.) Sarjana Sharma, LMO, SH, Giridih have been formed in committee. He further submits that in the said committee report they have opined that one Kidney was not there from the time of birth and case was found renal agenesis. He further submits that pursuant to letter dated 28.08.2014 issued by the Director-in-Chief, Health Services, Government of Jharkhand 3-Men Committee was constituted by RIMS, Ranchi wherein Head of Department of Surgery, RIMS, Head of Department, Radiology and Director, Medicine Education & Health Services, Government of Jharkhand have been formed in the committee. The said committee has also opined that Kidney in question was absent since birth. He further submits that the said doctor Enquiry Witness No. 3 was called by the Committee but that the said doctor has not appeared in the said committee. He further submits that no offence under sections 307 and 420 I.P.C. so far petitioner is concerned, is made out. He relied on judgment in the case of "Jacob Mathew Vs. State of Punjab" reported in (2005) 6 SCC 1.
5. Per contra, Mr. Vishal Kumar, learned counsel for the O.P. No. 2 submits that expert opinion is required to be considered in the light of section 45 of the Indian Evidence Act. Referring to the statement of the enquiry witnesses specially Enquiry Witness No. 3 which is annexed with the petition, he submits that this witness has stated that before operation both kidney of the O.P. No. 2 was intact which has been disclosed in the Ultrasound report. He further refers to Section 145 of the Indian Evidence Act 4 and submits that credibility of witness can be allowed only in manner prescribed under section 145 the said Act. He further submits that so far as expert opinion is concerned, it is required to be considered in the light of Section 293 Cr.P.C. He submits that at this stage the Court may not interfere with the petition under section 482 Cr.P.C. as only cognizance has been taken and the entire fact is intact. He relied on judgment in the case of "Dayal Singh & Others Vs. State of Uttranchal" reported in (2012) 8 SCC 263 wherein para 37 the Hon'ble Supreme Court has held as under:-
"37. Profitably, reference to the value of an expert in the eye of the law can be assimilated as follows:
"The essential principle governing expert evidence is that the expert is not only to provide reasons to support his opinion but the result should be directly demonstrable. The court is not to surrender its own judgment to that of the expert or delegate its authority to a third party, but should assess his evidence like any other evidence.
If the report of an expert is slipshod, inadequate or cryptic and the information of similarities or dissimilarities is not available in his report and his evidence in the case, then his opinion is of no use. It is required of an expert whether a government expert or private, if he expects, his opinion to be accepted to put before the court the material which induces him to come to his conclusion so that the court though not an expert, may form its own judgment on that material. If the expert in his evidence as a witness does not place the whole lot of similarities or dissimilarities, etc., which influence his mind to lead him to a particular conclusion which he states in the court then he fails in his duty to take the court into confidence. The court is not to believe the ipse dixit of an expert.
Indeed the value of the expert evidence consists mainly on the ability of the witness by reason of his special training and experience to point out the court such important facts as it otherwise might fail to observe and in so doing the court is enabled to exercise its own view or judgment respecting the cogency of reasons and the consequent value of the conclusions formed thereon. The opinion is required to be presented in a convenient manner and the reasons for a conclusion based on certain visible evidence, properly placed before the Court. In other words the value of expert evidence depends largely on the cogency of reasons on which it is based." [See Forensic Science in Criminal Investigation & Trial (4th Edn.), by B.R. Sharma.]"
6. By way of relying on the aforesaid judgment, learned 5 counsel for the O.P. No. 2 submits that value of expert evidence consists mainly on the ability of the witness as it has been held by the Hon'ble Supreme Court in the case of " Dayal Singh" (supra) He submits that both the reports are subject matter of the trial and at this stage, this Court may not interfere with this petition.
7. Learned counsel for the O.P. No. 2 further relied on judgment in the case of " The Forest Range Officer and Others Vs. P. Mohammaed Ali & Others" reported in AIR 1994 SC 120 and submits that expert opinion is only opinion that evidence does not interpret. Relying on this judgement, he submits that at this stage this Court may not interfere with this petition.
8. In view of aforesaid facts and considering the submission of the learned counsel for the parties, the Court has gone through the materials on record. It is an admitted fact that the complaint was filed by the O.P. No. 2 and pursuant to reference under section 156(3) Cr.P.C. the matter was investigated by the police and final form has been submitted whereby petitioner has not been sent up for trial who is a doctor who conducted hysterectomy upon the O.P. No. 2. Pursuant to final form, learned court has called the O.P. No. 2 by way of issuing notice upon her. The O.P. No. 2 appeared and filed protest-cum-complaint petition and examined herself and other witnesses. Pursuant thereto considering the enquiry witnesses, particularly Enquiry Witness No. 3 cognizance has been taken against the petitioner under section 307 and 420 I.P.C. who has conducted hysterectomy. On perusal of cognizance order dated 30.07.2018, it transpires that the learned court has given much emphasis upon Enquiry Witness Nos. 3 and 4 who are doctor who conducted Ultrasound of the O.P. No. 2. When 6 two reports of Giridih Hospital and RIMS may be part of the final form that was required to be considered by the learned court before taking cognizance as two Committees have come to the conclusion. Both Committee have not found scar mark in the kidney region and found only one transverse scar mark in supra pubic region of lower abdomen and case of removal of kidney was not found. The learned court took cognizance under sections 307 and 420 of the Indian Penal Code. How the ingredients of these two sections are made out, has not been disclosed in the cognizance order.
9. The judgement in the case of "Jacob Mathew"
(supra) relied by the learned counsel for the petitioner is with regard to negligence of operation in which it has been held that the Supreme Court has made an extensive discussion of the various issues that may arise in cases of civil medical negligence and all the conclusions in respect thereof would be applicable to cases of criminal medical negligence and all rulings would have to be considered in the context of the higher level of negligence necessary to constitute criminal negligence.
10. In the case of "Dayal Singh" (supra) relied by the learned counsel for the O.P. No. 2 the Hon'ble Supreme Court has also held that if the report of an expert is slipshod, inadequate or cryptic and the information of similarities or dissimilarities is not available in his report and his evidence in this case, thus his opinion is of no use. These judgements are required to be considered in the light of this observation also. The judgment in the case of "Forest Range Officer (supra) relied by the learned counsel for the O.P. No. 2 wherein it has been held that expert opinion is only opinion that evidence does not interpret, which is subject matter of the fact. 7
11. In the case in hand doctor is being prosecuted when two reports which is part of final form pursuant to which final form has been submitted it was incumbent upon the learned court to consider the two expert committee reports. Section 293 Cr.P.C. relied by the learned counsel for the O.P. No. 2 also provides the method how expert can be examined. Since two reports of the committee who are expert in their field and considered that P.W.3 has not reported before the RIMS Committee though she was called by that committee, this matter is required to be reconsidered by the learned court below. Accordingly, cognizance order 30.07.2018 in connection with CC No. 742 of 2016 taken against the petitioner under sections 307 and 420 I.P.C., pending in the Court of learned C.J.M., Giridih is hereby quashed.
12. The matter is remitted back to the court concerned to pass afresh order in the light of discussions made here-in-above and in accordance with law.
13. This petition is disposed of. Pending I.A., if any, stands disposed of.
(Sanjay Kumar Dwivedi, J.) Satyarthi/-