Delhi District Court
Vikas Kumar vs . State on 25 March, 2009
-:1:- Cr.R.No.02/07
Vikas Kumar Vs. State
IN THE COURT OF SH.R.P.PANDEY : ADDL.SESSIONS JUDGE :
ROHINI COURTS : DELHI
Criminal Revision No.02/07 (In FIR No.643/03 PS Sultan Puri)
Vikas Kumar
s/o Sh.Ram Pal Singh
r/o D-4/285, Sultan Puri
Delhi
--------PETITIONER
VERSUS
STATE (NCT OF DELHI)
-------RESPONDENT
Date of filing petition : 07.02.07
Date on which arguments heard: 21.03.09
Date of order/judgment : 25.03.09
ORDER
1. This order will dispose of the revision petition filed by petitioner assailing the order passed by Sh.S.S.Rathi, Ld. MM on 27.05.06 (for short 'impugned order') for framing charge against him under section 304A IPC.
-:2:- Cr.R.No.02/07
Vikas Kumar Vs. State
2. The brief facts of the case are that FIR No.643/03 U/s 304A/34 IPC was registered with PS Sultan Puri on a complaint made by Smt.Bhagwati that on 02.06.03 her husband Vasudev had gone to factory for work at 6.00 a.m. but came back at 9.30 a.m. and told that he was not well and started vomiting. On being asked he told that he had not eaten anything but had taken cold drink. Then alongwith her neighbours she took Vasudev to the clinic of Dr.Gajendra Chauhan at D-4 where compounder of the doctor was present (i..e petitioner) who made Vasudev lay down on bed and and after checking his blood pressure told them that his B.P. was high and he is also suffering with gastric. He thereafter administered Vasudev two pills, pink colour syrup and injection on his left arm. Thereafter condition of Vasudev further deteriorated. Then compounder advised them to take Vasudev to big hospital where upon he was taken to SGM hospital where he was declared brought dead.
MLC of deceased Vasudev shows that he was brought to -:3:- Cr.R.No.02/07 Vikas Kumar Vs. State SGM hospital in dead condition at 10.50 a.m. on 02.06.03 itself with history of seven episodes of vomiting with ghabrahat having already taken treatment from outside.
FIR was registered and body of deceased Vasudev was sent to post mortem. At the request of complainant post mortem was conducted by a Medical Board which observed that the cause of death shall be opined on receipt of chemical analysis of viscera report and the thin pieces from infection test site. It was also stated that "the post mortem findings are consistent with asphyxia, as a result of allergic reaction which could be possible from the injection given as alleged and hence the question of medical negligence, at this stage cannot be ruled out". However, after receipt of viscera report same medical board after perusal of chemical analysis report of viscera and thin pieces opined that "chemical analysis of the viscera and thin pieces gave negative results for common poison as well as for the presences of the drugs, and the ampule sent by Addl.DCP gave positive presence of declofenac. In view of the above facts, we are of -:4:- Cr.R.No.02/07 Vikas Kumar Vs. State the opinion that the cause of death being viral infection (a natural disease process), cannot be rule out. In view of the above facts, medical negligence is ruled out". Thus, the medicine injected by accused Vikas to deceased Vasudev was found to be declofenac, which is a common pain reliever.
3. The Ld.counsel for revisionist has drawn attention of the Court to the statements given by Mr.Harbans Lal, who is brother of deceased, one Mr.Chand and Kehari Singh under section 161 Cr.PC wherein they all have stated that in the morning of 08.06.03 deceased Vasudev had complained chest pain and continuous episodes of vomiting and therefore after seeing his deteriorating condition they took him to the clinic of Dr.Gajendra Singh Chauhan at D-4, Sultanpuri where doctor was not present but one boy was present there. They pressurized said boy to immediately give some medicine to Vasudev, who after asking the doctor over phone and after giving medicines asked them to take patient to a government hospital -:5:- Cr.R.No.02/07 Vikas Kumar Vs. State immediately. They further stated that when they were taking deceased Vasudev, his condition further deteriorated and he died on way to hospital and on reaching SGM Hospital Vasudev was declared dead. They have stated that they had made application for post mortem by Medical Board.
4. A seizure memo showing seizure of a 30 ML bottle of Declofenac Sodium Inj. IP from the clinic of doctor at the pointing out by accused Vikas was also prepared which is on record.
5. I have heard counsel for revisionist and Addl.PP for State and perused the record carefully.
6. Ld.counsel for revisionist has submitted that co-accused Dr.Gajender Chauhan who is employer of revisionist, in whose clinic he was employed has already been discharged by the court of Sh.Narottam Kaushal, Ld.ASJ vide his order dated 9.11.06. He has -:6:- Cr.R.No.02/07 Vikas Kumar Vs. State submitted that in any case the liability of servant cannot be more severe than the liability of his principal and when principal has been discharged the servant also becomes entitled for the same on parity. On the other hand Ld.Public Prosecutor has argued that the case of revisionist herein does not fall at par with Dr.Gajender Chauhan as the allegations against the doctor was only that he had advised revisionist to give medicines to deceased Vasudev whereas revisionist is actual doer of the alleged offence.
7. Ld.counsel for revisionist has submitted that even as per the statements made by the prosecution witnessed to police U/s 161 Cr.PC, on being pressurized by the attendants of deceased Vasudev, who was under immense pain, the petitioner had administered him with injection of declofenac and advised him to go to a hospital. He has submitted that declofenac is a common pain reliever and thus cannot be said to be dangerous to any body's life. The Ld.Public Prosecutor, has on the other hand submitted that the accused has no -:7:- Cr.R.No.02/07 Vikas Kumar Vs. State qualification to administer any such injection. At this Ld.counsel for revisionist has submitted that revisionist is having a senior's certificate in First Aid duty issued by a recognized institution and he has shown the same in the court. He has further submitted that even in the opinion of Medical Board, which conducted post mortem, there was no medical negligence in death of deceased Vasudev.
8. Relying upon Judgments of Apex Court in 2004(3) RCR (Crl.) 925 (SC) and 2004(3) Apex Criminal 396(SC) it was held by our own Hon'ble High Court in Dr.D.P.Soha vs. Dr.Vinit Suri & Another 2007(1) RCR (Crl.) 443 that to convict a doctor under section 304 A the prosecution has to come out with a case of high degree of negligence on the part of the doctor and that the act complained against the doctor must show negligence or rashness of such a higher degree as to indicate a mental state which can be described as totally apathetic towards the patient. It was held that only such a gross negligence alone is punishable(para 11). -:8:- Cr.R.No.02/07
Vikas Kumar Vs. State Hon'ble Supreme Court in a recent Judgment Mahadev Prasad Kaudhil vs. State of U.P.AIR 2009 SC 125 observed that:-
Section 304 A IPC- Seeks to embrace those cases where there is neither intention to cause death, nor knowledge that the act done will in all probability result into death. It is applied to those acts which are rash and negligent and are directly the cause of death of another person (para 28). In the instant case administering of a pain reliever injection to deceased by the petitioner on telephonic advise from the doctor cannot be said to be the cause of death of deceased Vasudev more particularly in view of finding of Medical Board which conducted post mortem.
Hon'ble Apex Court in para 30 of judgment quoted the following observation of Strait J., made in Empress vs. Inder Beg (1881) ILR 3 All 776 "Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality -:9:- Cr.R.No.02/07 Vikas Kumar Vs. State lies in running the risk of doing such an act with recklessness or indifference as to the consequences.
Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and prosecution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was imperative duty of the accused person to have adopted".
9. Thus, what has to be seen is that whether the act alleged on the part of accused Vikas is directly the cause of death of deceased Vasudev. To give his finding on this question the Court will have to rely upon evidence arrayed by prosecution. MLC of deceased Vasudev show that when he was taken to SGM hospital he was declared brought dead. It is also observed therein that deceased had seven episodes of vomiting and given treatment outside. In nutshell a patient suffering with pain and vomiting comes to clinic of the doctor and the compounder i.e. petitioner after seeing his condition and -:10:- Cr.R.No.02/07 Vikas Kumar Vs. State talking to doctor administered an injection of declofenac sodium, a popular pain reliever, and advises him to go to hospital immediately. The final outcome of PM report rules out any medical negligence and cause of death is declared as viral infection ( a natural disease process). The question is whether these plain facts, if proved by prosecution would bring out any offence against accused/petitioner. The answer is definite 'no'. In my considered view the Ld.MM has erred in brushing aside the opinion of the Medical Board ruling out the possibility of medical negligence as cause of death of deceased Vasudev.
The Hon'ble Supreme court in Union of India Vs. Prafulla Kumar Samal and Another (1979) 3 SCC 4 had laid down that if two views are equally possible and the judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
The Hon'ble Supreme Court in Union of India Vs. Prafulla -:11:- Cr.R.No.02/07 Vikas Kumar Vs. State Kumar (supra) had laid down the following principles for consideration while framing the charges under section 227 of Cr.PC:-
1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out;
2) Whether the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however, if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.-:12:- Cr.R.No.02/07
4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Court can not act merely as a Post Office or a mouth piece of the proseuction, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This, however, does not mean that the Judge should make a moving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
10. Considering the above guidelines of Hon'ble Supreme Court and the ratio of law propounded by Hon'ble Delhi High Court in cases referred herein above, I am of the opinion that even if the entire evidence Marshalled against the accused/petitioner is taken as correct, the offence under Section 304 A IPC is not made out for the reasons discussed above.
In my considered view the Ld.MM has erred in passing the -:13:- Cr.R.No.02/07 Vikas Kumar Vs. State order for framing charge against accused-petitioner. Accordingly I allow the petition and set aside the order passed by Ld.MM on 27.05.06 for framing charge against accused-petitioner Vikas Kumar in FIR No.643/03 PS Sultan Puri. TCR be sent back alongwith copy of this order and revision file be consigned to Record Room.
Announced in Open Court ( R.P.PANDEY )
on 25.03.09 Addl.Sessions Judge(Outer-II)
Rohini Courts, Delhi
-:14:- Cr.R.No.02/07
Vikas Kumar Vs. State
25.03.09
Present- None.
Vide separate order revision petition is allowed. TCR be sent back with copy of order and revision file be consigned to Record Room.
( R.P.PANDEY ) Addl.Sessions Judge(Outer-II) Rohini Courts, Delhi