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2007 Supreme(AP) 557
Andhra Pradesh High Court
Judges : BILAL NAZKI, R.SUBHASH REDDY
Sanjay Mutha - Appellant
Versus
Jayasree Desai - Respondent
Decided On : 06/08/2007
Case No : Criminal Revision Case No.1168 of 2005, Transfer Criminal Appeal No.1 of 2005, Criminal Appeal No.1539 of 2005
Headnote:
Indian Penal Code, 1860 - Section 338, 304-A – Criminal Procedure Coed, 1908 – Section 200, 357 – Claim of Compensation - Appeal for no need of Second Child - Reluctant to undergo test – Case of an unfortunate young lady who was mother of a child and wanted to have a second child and while undergoing investigations at the hands of the accused persons, ended up in a state of health which can only be described as vegetative complainant-her husband a chartered accountant filed a complaint against accused persons under Section 200 of submitting that he had married – She is also a Chartered Accountant. She had a brilliant academic record she was a swimmer and was only 35 years old on the date of the occurrence. After marriage, a daughter was born to the couple – Both husband and wife were practicing as Chartered Accountants. After a gap of many years from the date of birth of their first child, the couple decided to have another child and they consulted A-1, who advised the complainant’s wife to undergo a Fallopian Tube test – Complainant maintained that was reluctant to undergo test, but A-1 reassured the complainant and his wife that the test was simple and it would take few minutes and there was no risk involved – On such assurances by A-1 agreed to undergo the test. She was advised by A-1 to come to her clinic morning – She went to hospital – It was expected that she will return to her home within an hour. As she did not return back even her husband complainant, went to hospital to pick her up – When complainant reached hospital he was informed that had been taken inside the room and would be back soon – He waited for some time – Held, We would have enhanced sentence of accused persons to maximum provided under Section 338 of IPC, but during the hearing of this case accused persons appeared before the Court and they offered an amount of rupees forty lakhs by way of compensation which was not accepted by the complainant on ground that he had already filed a case for compensation before National Consumer Disputes Redressal Commission and which was pending accused had offered to compound offence in lieu of a compensation of rupees forty lakhs irrespective of quantum of compensation that may be granted by the National Commission act would show that doctors who are accused in this case, were repentant on what had happened – We could not have forced a compromise between the parties, but in the hope that parties might enter into a compromise, we delayed the disposal of this case for some time – Code of Criminal Procedure to enable the Courts to order payment of compensation to the aggrieved persons in lieu of sentencing the accused. Section 357 of the Code of Criminal Procedure relates to order to pay compensation and sub-section (3) of this Section gives a power to Court to order payment of compensation by the accused to a person who suffered any loss or injury even in a case where fine does not form part of sentence imposed by Court – In present case under Section 338 of the Indian Penal Code a maximum fine can be imposed – So paying compensation out of this amount would not be possible in terms of Section 357 (1) of Code which lays down that when a Court imposes sentence of fine or any other sentence of which fine forms a part, the Court may order the whole or any part of fine recovered to be given by way of compensation. This restriction is not on sub-section (3) of Section 357 of Code but compensation ordered to be paid under Section 357 (3) of Code would be in addition to the sentence. There is no other interpretation possible on Section 357 of Code of a judgment of Supreme Court reported in considered import of sub-section (3) of Section 357 of Code – Application is disposed.
Bilal Nazki, J.
Criminal Revision Case No.1168 of 2005 is a taken up Revision on the representation of the complainant in C.C.No.1 of 2001 on the file of the XVII Metropolitan Magistrate, Hyderabad. Transfer Criminal Appeal No.1 of 2005 has been preferred by the accused in the above C.C.No.1 of 2001 against their conviction and sentence. The Public Prosecutor against the sufficiency of sentence has filed criminal Appeal No.1539 of 2005 in that case. All these matters are being disposed of together by this common judgment.
This is a case of an unfortunate young lady who was mother of a child and wanted to have a second child and while undergoing investigations at the hands of the accused persons, ended up in a state of health, which can only be described as vegetative. The complainant-her husband, a chartered accountant, filed a complaint against the accused persons under Section 200 of Cr.P.C., submitting that he had married Rupa Mutha on 17.01.1987. She is also a Chartered Accountant. She had a brilliant academic record; she was a swimmer and was only 35 years old on the date of the occurrence. After marriage, a daughter was born to the couple on 29th of March 1988. Both the husband and wife were practicing in Hyderabad as Chartered Accountants. After a gap of many years from the date of birth of their first child, the couple decided to have another child and they consulted A-1, who advised the complainant’s wife to undergo a Fallopian Tube test. The complainant maintained that Mrs. Rupa Mutha was reluctant to undergo the test, but A-1 reassured the complainant and his wife that the test was simple and it would take few minutes and there was no risk involved. On such assurances by A-1, Smt. Rupa Mutha agreed to undergo the test. She was advised by A-1 to come to her clinic on 19.07.1999 in the morning. She went to the hospital by 7.30 a.m. on 19.07.1999. It was expected that she will return to her home within an hour. As she did not return back even by 8.40 a.m., her husband-the complainant, went to the hospital to pick her up. When the complainant reached the hospital, he was informed that Smt. Rupa Mutha had been taken inside the room and would be back soon. He waited for some time. He was not given any information, but he noticed that a Nurse was running here and there and the Nurse went into the theatre with a pulse oxymeter. Thereafter, A-1 came out of the theatre. She tried to contact Medi Citi hospital and informed the complainant that Smt. Rupa Mutha was getting a Cardiac arrest. A-1 was not able to get a Doctor even though an hour had elapsed. The complainant himself tried to get in touch with some doctors and ultimately he was able to get in touch with Dr. Sridhar and Dr.Raghu. The complainant knew these doctors and at his request, both the doctors came to the hospital and examined Smt.Rupa Mutha. She was then shifted to Care hospital, Mozamjahi Market, Hyderabad at about 11.30 a.m. in an ambulance. She was accompanied by A-1 and A-2 and during the transit from the hospital of A-1 to Care hospital, continuous supply of oxygen was ensured. She was admitted in Care hospital and according to the discharge summary given by Care hospital, Smt. Rupa Mutha was brought to the hospital in a Comatose condition. She remained in intensive care until 30th of July 1999. Thereafter, she was shifted to a room in the Care hospital and she remained in the hospital till 16th of August 1999. Thereafter, the complainant shifted her to Chennai for further care, but till the complaint was filed, there was no improvement in the condition of Smt.Rupa Mutha and she was living as a vegetable.
The complainant, in his complaint, further maintained that Smt.Rupa Mutha was hale and healthy before going to the hospital of A-1 for the purpose of undergoing Fallopian Tube Test, but thereafter, she never regained her consciousness. The condition in which Smt.Rupa Mutha landed was on account of brain damage, which in turn, was on account of
