A medical practitioner's negligence can lead to conviction under lesser charges if intent to cause death is not established, differentiating between murder and unintentional harm.

JUDGMENT :

R. Mukhopadhyay, J.

Heard Mr. Arwind Kumar, learned counsel appearing for the appellant and Mr. Pankaj Kumar, learned P.P. for the State.

2. This appeal is directed against the judgment and order of conviction and sentence dated 13.2.2017, (sentence pronounced on 17.2.2017) passed by Shri Kumar Dinesh, learned District & Additional Sessions Judge- III, Dhanbad in connection with S.T. No. 547/09 whereby and whereunder the appellant has been convicted for the offences punishable under section 302/313 IPC and has been sentenced to undergo rigorous imprisonment for life and a fine of Rs.10,000/-for the offence under section 302 IPC and rigorous imprisonment for ten years and a fine of Rs.10,000/-for the offence under section 313 IPC and in default in payment of fine to undergo simple imprisonment for a further period of six months.

3. The case of the prosecution arises out of the Fardbeyan of Anita Devi recorded on 14.6.2009 wherein it has been stated that about 2-2 and ½ months back, she fell ill and she had gone for a treatment to Saraswati Clinic belonging to the appellant-Nimai Rawani. She was pregnant and was suffering from stomach pain. The accused/appellant without her consent operated upon her and aborted the fetus. This resulted in deterioration in her health condition and she was taken to Nikhil Nursing Home where she is being treated.

Based on the aforesaid allegations, Katras (Tetulmari) P.S. Case No. 121/09 was instituted under section 313/307 IPC and Section 304 and 302 IPC was added after the death of the informant –Anita Devi. On conclusion of investigation, chargesheet was submitted under sections 313/302 IPC and after cognizance was taken the case was committed to the Court of Sessions where it was registered as S.T. No. 547/09. Charge was framed against the accused for the offence under section 313/302 IPC which was read over and explained to the accused in Hindi to which he pleaded not guilty and claimed to be tried.

4. The prosecution has examined as many as five witnesses in support of its case.

P.W-1-Sangita Devi is the sister of the deceased who has not supported the case of the prosecution and has been declared hostile by the prosecution.

P.W-2-Naresh Prasad has stated that on 10.05.2009 he was posted at Tetulmari P.S. and on that day he had recorded the Fardbeyan of Anita Devi at Nikhil Nursing Home, Loyabad. He has proved the Fardbeyan which is in his handwriting and bears his signature and which has been marked as Ext-1. The Fardbeyan was forwarded to Katras P.S. and such forwarding has been proved and marked as Ext-2/1. On the basis of the Fardbeyan, Katras P.S. Case No. 126/09 was registered under section 307/313 IPC. He has proved the endorsement on the Fardbeyan by the officer in charge, Katras P.S., which has been marked as Ext-2/2. The formal FIR has been proved and marked as Ext-2/3.He had taken over the investigation of the case and had recorded the restatement of the informant and the statement of some of the other witnesses. He had inspected the place of occurrence, which is Saraswati Clinic. He had come to know that the informant has died and after verification the dead body was sent for conducting autopsy. The witness Sangeeta Devi had disclosed that the informant was treated by the appellant in his clinic and without the consent of the informant the appellant had conducted an abortion as a result of which the condition of the informant became serious. Later on it came to light that the appellant is not a qualified medical practitioner. The informant was later on taken to Nikhil Nursing Home and thereafter she was brought to her house where