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B.M. Gupta, J.
State of M.P. v. Dr. Ramlakhan Singh and others
Criminal Revision No.389 of 2008 (Gwalior) : against the order of
I Additional Sessions Judge, Vidisha, passed in
Criminal Revisions No. 70, 71 and 72 of 2007; Decided on : 2.7.2009.
It is alleged against accused Ramlakhan Singh that when he attended the deceased, required promptness was not shown and oxygen mask put on the face of the deceased was found without oxygen in the cylinder. However, immediately after putting the mask the same was removed.
It is apparent that even as per the evidence of the prosecution, within 15 minutes deceased died in the hospital. It is an admitted fact that no post-mortem was conducted. Hence, cause of death is unknown.
It appears that this was the responsibility of Ward of charge.
The framing of charge against Dr. Ramlakhan Singh under section 304A IPC does not appear justified.
With regard to the rest of the two doctors; namely Dr. Mangal Singh Rajput and Dr. Radheshyam Sharma, the allegation against them mainly is that on call they could not be available at the relevant time. It is a fact that they did not treat the deceased at all. On these facts of their non-availability, they cannot be held responsible for such criminal negligence, on which they can be prosecuted for the offence punishable under section 304A of IPC.
With regard to another charge under section 193 of IPC, when it is argued on behalf of the doctors that there is no evidence on record, then despite putting specific question by the Court, no evidence oral or documentary has been shown on behalf of the State. 1972 SC 1150, 1999 SCC (Cri.) 76, 2003(1) Vidhi Bhasvar. 243, 2005(3) Crimes 63 (SC) and 1992 Supp(1) SCC 335 followed. [Paras 9, 10, 12A, 12B & 13
naM lafgrk] 1860 && /kkjk 304d rFkk 193 && MkDVjksa ds fo#) vijk/kksa ds fy, vkjksi && Hkkjrh fd, tkus ds 15 feuV Hkhrj e`rd dh e`R;q gbZ && vfHk;qDrksa esa ls ,d us e`rd ds eq[k ij fcuk vkDlhtu dk vkDlhtu ekLd j[kk && nks MkDVjksa us mipkj ugha fd;k && /kkjk 193 ds v/khu vijk/k ds laca/k es lk{; miyC/k ugha && vkjksfir fojfpr ugha fd;k tk ldrkA
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"ksk nks MkDVjksa] vFkkZr Mk- eaxy flag jktiwr rFkk Mk- jk/ks";ke "kekZ ds ckjs esa] muds fo#) eq[; vfHkdFku ;g gS fd cqykus ij os lqlaxr le; esa viyC/k ugha gks ldsA ;g ,d rF; gS fd mUgksaus e`rd dk fcYdqy mipkj ugha fd;kA mudh vuqiyC/krk ds bu rF;ksa ds vk/kkj ij] os ,slh nkafMd mis{kk ds fy, mRrjnk;h ugah Bgjk, tk ldrs] ftl ij mUgsa Hkkjrh; naM lafgrk dh /kkjk 304d ds v/khu naMuh; vijk/k ds fy, vfHk;ksftr fd;k tk ldsA
Hkkjrh; naM lafgrk dh /kkjk 193 ds v/khu vU; vkjksi ds ckjs esa] tc MkDVjksa dh vksj ls ;g cgl dh xbZ fd vfHkys[k ij dksbZ lk{; ugha gS] rc U;k;ky; }kjk fofufnZ"V iz‘u iwNs tkus ds ckotwn] jkT; dh vksj ls dksbZ lk{; ekSf[kd ;k nLrkosth] nf‘kZr ugha fd;k x;kA , vkb vkj 1972 ,l lh 1150] 1999 ,l lh lh ¼fdz-½76] 2003¼1½ fof/k HkkLoj 243 ¼mPpre U;k-½] 2005¼3½ dzkbEl 63 ,l rFkk 1992 lIyh- ¼1½ ,l lh lh 335 vuqlfjrA
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1. All these three petitions are arising out of one common order, hence as agreed to by all the parties, they have been heard together and are being disposed of by this common order.
2. The facts of the case of prosecution, as per the FIR are, that during intervening night of 5th and 6th August 2001 at about 1:00 am., Ramlal Kaul, CJM Vidisha (hereinafter referred as the deceased) was admitted in District Hospital Vidisha. He was feeling severe pain in his chest. He was attended by his son Ravindra Kaul and Priyadarshan Sharma, JMFC. Accused Dr. Ramlakhan Singh was on duty, who attended the deceased. During treatment he put oxygen mask on the face of the deceased. Immediately after putting the mask, deceased started feeling restlessness, which was reported by Ravindra Kaul to the doctor, on which Dr. Ramlakhan Singh checked the gas cylinder and found the same as empty. Immediatel y he removed the mask from the face. During that time, another doctor Bansal came and after examining the deceased declared him as dead. During treatment this accused Dr. Ramlakhan Singh sent calls to call Medical Specialist Dr. Bagrecha. When he could not be available, he sent further calls to accused Dr. R.S. Sharma and Dr. M.S. Rajput. It was reported from the house of Dr. Radheshyam Sharma that he is out of station. Despite efforts, Dr. Mangal Singh Rajput also could not be available and thus these two doctors did not reach the hospital for the treatment of the deceased. Upon reporting the matter, Crime No.414/01 was registered at Police Station Kotwali Vidisha for the offence punishable under section 304A IPC against Dr. Ramlakhan Singh alongwith one more, whose name was not mentioned in FIR. After completing the investigation, the charge-sheet was filed against Dr. Ramlakhan Singh, Dr. Mangal Singh Rajput and Dr. Radheshyam Sharma for the offence pnishable under section 304A of IPC.
3A. Vide order dated 14th December 2006, JMFC Vidisha in Criminal Case No.949/06, has framed charge under section 193 and 304A of IPC against accused Ramlakhan Singh and Mangal Singh Rajput and under section 304A of IPC against accused Radheshyam Sharma. Feeling aggrieved, three Criminal Revisions bearing Criminal Revision No.70/07, Criminal Revision No.71/07 and Criminal Revision No.72/07 were tiled by all these three accused persons, which have been disposed of vide one impugned order dated 12th March, 2008 passed by First Additional Sessions Judge Vidisha. Vide impugned order, the charge framed against accused Ramlakhan Singh has been affirmed. Revision filed by accused Radheshyam Sharma has been allowed and he has been discharged from charge under section 304A of IPC. Accused Mangal Singh Rajput has been discharged under section 304A of IPC, however, his charge under section 193 IPC has been affirmed.
3B. Feeling aggrieved with the impugned order, State has preferred Criminal Revision No.389/08 praying therein to affirm the order as a whole passed by learned Magistrate. MCrC No.3704/08 has been filed by petitioner Mangal Singh Rajput, assailing the order affirming charge under section 193 of IPC against him. MCrC No.3883/08 has been filed by petitioner Ramlakhan Singh assailing the impugned order as a whole and seeking discharge from all the two charges.
4. Although, these three petitions have not been admitted for final hearing, yet as per the order dated 15th January 2009, all these petitions have been listed for final hearing, hence the parties have been heard finally in all the three petitions.
5. Shri R.D. Agrawal for the State has drawn attention at the statement of Civil Surgeon Dr. Pankaj Shukla and has submitted that he has also held the doctors responsible and also has mentioned that Dr. Mangal Singh Rajput was on duty and Dr. Radheshyam Sharma' left the headquarters without permission. He has also drawn attention at the report dated 11th September 2001 of Additional Collector, Vidisha, who has also observed the doctor's negligence. With regard to
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