Negligent medical conduct leading to newborn's death qualifies under S.304A IPC rather than S.304, Part II IPC.

1. This Criminal Revision is directed against an order dated 21-12-2005 passed by Smt. Rajni Dubey, 1st Addl. Sessions Judge, Rajnandgaon, District Rajnandgaon in Sessions Trial No. 100/2005 whereby charge under S.304, Part - II of the IPC was framed against the applicant.

2. Brief facts of the case as disclosed by the first information report lodged by Dhal Singh Chandel on 21-4-2005 at P. S. Chikhli, District Rajnandgaon are as follows:
Dhal Singh Chandel runs a medical stores in Chikhli. His wife Smt. Madhu alias Preeti Chandel had undergone a Caesarian operation about 5 years prior to the incident and was blessed with a daughter. On 28-3-2005 Smt. Madhu Chandel was having full term pregnancy again and was undergoing treatment of Gynaecologist Dr. Smt. Asha Thomas of Christian Fellowship Hospital. At about 9 a.m. on 28th March, 2005 Smt. Madhu Chandel started having labour pains. Dhal Singh Chandel was about to take his wife to the Christian Fellowship Hospital for delivery. At that time, the applicant - accused Dr. Arun Dewangan, who runs a charitable hospital nearby came to the house of Dhal Singh Chandel and told him not to go to the hospital as he would very comfortably get the delivery of Smt. Madhu done at home itself. Dhal Singh knew Dr. Dewangan since long and had great respect for him. The applicant - accused was also on visiting terms to his house. Dhal Singh requested that since the first delivery was by Caesarian, he did not want to take any risk and wanted to take his wife to the hospital. However, the applicant - accused with great confidence said that Smt. Madhu was not in a condition to be shifted to the hospital and he would set things right in 10 minutes. On this, Dhal Singh Chandel agreed to the offer of the applicant - accused to get the delivery of his wife done at home.

3. Smt. Madhu who was undergoing labour pains was in sheer agony. The accused - applicant gave 5-7 heavy dose pain killer injections to her one by one which aggravated the pain. At about 4.00 p.m., the accused - applicant started pressing the Uterine portion of the abdomen and full term male child weighing 4 kgs. was delivered. The applicant asked Dhal Singh to immediately take the child to a Child Specialist. Within no time, Dhal Singh took his new born male child to a clinic of Child Specialist Dr. Narendra Gandhi who found that the child was in gasping respiratory condition and died within about 20 minutes. Smt. Madhu was admitted at United Hospital from 28-3-2005 as a case of third degree perinial tear (home delivery) and was discharged on 2-4-2005. After considerable lapse of time, Dhal Singh Chandel lodged a written complaint to the S.H.O.P.S. Chikhli, District Rajnandgaon on 21-4-2005. Certificate of Dr. Narendra Gandhi was obtained which showed that on 28-3-2005 at 6.15 p.m. a male child born to Smt. Madhu Chandel was brought in gasping respiratory condition and had swelling on the head i.e. Caput Succedaneum. The child died at 6.35 p.m. and was handed over to the parents at 7.00 p.m. Probable cause of death was opined to be possibly Hypxic Ischiemic Encapalopathy Asphyxia during birth. Statement under S.161 of Smt. Madhu Chandel also reveals that she was in severe pain and agony which got aggravated when the applicant - accused had given 5-7 injections repeatedly. At about 4.00 p.m., the accused - applicant by pressing and squeezing the uterine portion of the stomach got the delivery of a full term male child done and immediately asked her husband to take the child to a Child Specialist.

4. On the basis of above facts, the learned trial Judge framed charge under S.304, P