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IN THE HIGH COURT OF BOMBAY
Chandanlal Biharilal Jaiswal
Versus
State of Maharashtra
Decided On : (SEPTEMBER 22, 2005) 2006
Indian Penal Code, 1860 - Sections 314 and 316 - Maharashtra Medical Practitioners Act, 1961, Sections 33(1), (2) and 36(1), (2) - Medical Termination of Pregnancy Act, 1971, Section 7(3) - Conviction - Accused having no medical degree - Aborting a woman - Killed lady and child both - Victim treated by her mother with herbs - While under treatment of accused no pus was formed - Death cannot be attributed to accused - No offence made out conviction under Medical Practitioners Act maintained. - After hearing submissions of both the sides, what the Court finds is as follows : -
(a) It is nobody’s say that Shantabai was taken to the Dispensary of the deceased for conducting abortion.
(b) The witnesses are concurrent on the point that Shantabai had complained about excessive discharge.
(c) Shantabai was treated by her mother by herbal medicines for about 3 days prior.
(d) At about 4 O’clock, in the morning on 6.8.2005, health of Shantabai became serious suddenly when complainant and his mother-in-law took Shantabai to Clinic of the accused.
(e) Dr. Mrs. Sarla PW 11 has admitted in her cross-examination that the medicine referred to her for opinion pitocin and Methergin are also used when there is excessive bleeding though both the medicines are also used for abortion, and these medicines are commonly available in the medical shops.
(f) Dr. Mrs. Taksande has stated in her evidence that it would take about 8 hours time for formation of pus. It is seen from the testimony of PW 11 Dr. Sarla that she had noticed infection in vagina and the discharge was infected. Doctors conducting post- mortem noticed that pus formation was almost all over in the abdomen reaching it upto Ovaries. Such serious infection must have resulted into cause of death and when the patient was already serious and taken to the Clinic of Dr. Jaiswal, it would be improper to conclude on the available evidence that the complications occurred due to treatment.
(g) The period during which prosecution has proved that Shantabai was being treated by the accused is somewhere between 5.30 a.m. to 1 p.m., in the noon. The complications of formation of pus reaching the stage of septicaemia would not r each within about 6-1/2 hours.
(h) The death of foetus and the aggravation of complications cannot, therefore, be attributed to the accused.
Moreover, it cannot be said that the accused had any reason to treat the deceased for termination of pregnancy or cause it.
(j) All that the accused has done is acted rashly and negligently in the matter of accepting case of deceased Shanta and treating her for which he had neither authority, nor skill.
(k) Moreover, taking to the description of the foetus that it was not so well formed, and that well before he took up the case for treatment, the deceased had already become serious, and she was already suffering for a long time.
(l) The complaint of white discharge, the possibility of life of t he foetus having already come t o an end cannot be ruled out.
(m) The death of foetus and mall-handling of removal of foetus can be attributed to herbal treatment given prior to admission of the patient to the Clinic of the accused. Such herbal treatment is admitted fact as a part of prosecution story.
In this situation, the accused is not liable to be held guilty for offence under Sections 314 and 316 of the Indian Penal Code.
A. H. JOSHI, J.
( 1 ) THE accused was tried in Sessions Case No. 101 of 1985 by the 2nd Additional Sessions Judge, Chandrapur under sections 314 and 316 of Indian Penal Code and 33 (1), (2), 36 (1), (2) of Maharashtra Medical Practitioners Act, 1961 and section 7 (3) of the Medical Termination of Pregnancy Act, 1971.
( 2 ) THE learned Sessions Judge convicted the accused for the offence punishable under sections 314 and 316 of the Indian penal Code and sentenced to suffer R. I. , for five years and fine of Rs. 1000/- and in default R. I. , for four months. The accused was also convicted for the offence punishable under section 33 (1), (2) of Maharashtra Medical Practitioners Act, 1961 and sentenced him to pay fine of Rs. 500/- and in default R. I. , for two months. The accused was further convicted for the offence punishable under section 36 (1), (2) of Maharashtra Medical Practitioners Act, 1961 and sentenced to pay fine of Rs. 500/ - and in default R. I. , for two months and under section 7 (3) of Medical Termination of Pregnancy Act, R. I. , sentenced to pay fine of Rs. 500/- and in default, R. I. , for two months.
( 3 ) THE learned Sessions Judge, chandrapur framed charge against the accused to the effect that the accused with intent to cause miscarriage of Sau shantabai Satpute, a pregnant woman, without her consent, gave medicinal treatment and made unskilled and rough efforts to take out the foetus from the womb, which caused the death of unborn child as well of said Shantabai Satpute, and was therefore, liable for being tried for causing the death of an unborn child of Shantabai Satpute. Thirdly, the accused not being a doctor gave medical treatment and surgical treatment to the patient without being registered as such under different Maharashtra State acts and registeres prepared and maintained under the Indian Medical Council act. The accused was further charged for using title description letters or abbreviations which imply that the accused hold a degree, diploma, licence or certificate or any other like award as accuseds qualification to practice any system of medicine, added to accuseds name dr. L. DSC, R. M. P. M. S. M. S. R. No. 1107 and below it written in Marathi Balantan, Gupta Regi. Lahan mul, Dantkshay, General Surgeon Specialist and therefore, the accused had committed offence punishable under sections 314 and 316 of the Indian Penal Code, under section 33 (1) and (2) of the Maharashtra medical Practitioners Act, 1961 and under section 36 (1) and (2) of the Maharashtra medical Practitioners Act, 1961 respectively.
( 4 ) THE charge framed against the accused can be divided into two parts (1) relating to illegal medical practice by the accused and (2) about unauthorised termination of pregnancy causing death of the foetus and death of Shantabai.
( 5 ) THE prosecution has examined as many as 21 witnesses. Out of these witnesses, witness No. 5 Bhaurao Goma dhambari, P. W. 6 Abdul Khalil, P. W. 7 madhukar Narayan Junghare and P. W. 10 vishwas Ramrao Lahamge are the witnesses of various Panchanamas. P. W. 12 Sudhakar and P. W. 14 Brijbanadue Yadav are the Police Constable whose evidence is of formal nature, P. W. 19 Prakash is the photographer, P. W. 20 Jamadarsingh and P. W. 21 suresh are the Police Officer who have conducted the investigation. The facts relating to investigation, panchanama etc. , are coherently and consistently proved. There is no challenge to the evidence brought on record through these witnesses on the ground of want of proof of facts proved thereby. It is, therefore, not necessary to discuss the evidence of these witnesses.
( 6 ) REST of the evidence is divided in two parts of the charge. P. W. 2 Atmaram tudankar Administrator by the Government on the Board of Homeopathy and Biochemic system of medicine the witness No. 8 mohammad Usmani Office bearer of maharashtra Council of Indian Medicines, p. W. 17 S. A. Gadre, Registrar of maharashtra Medical Council, P. W. 18 abhimanyu, form
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