Seemanchal Swai v. State of Chhattisgarh

The appellant has preferred this Criminal Appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment of conviction and order of sentence dated 191-5-2000 passed by Vth Additional Sessions Judge, Durg in Sessions Trial No. 492 of 1996, wherein the said Court convicted and sentenced the appellant on following terms:- Conviction Sentence Section 471 of IPC Section 304-A of IPC R.I. for three years and fine of Rs,1,000/-, in default of payment of fine to further undergo SI for three months. R.I. for 1 year. Both the sentences are directed to run concurrently.

The record of the case would show that this Court granted bail to the

appellant on 05.06.2000 and thereafter no counsel for the appellant has appeared to argue the appeal, therefore, this Court has issued SPC on 07.09.2009 and issued bailable warrant on 27.10.2009 thereafter fixed the matter on 15.12.2009. On 15.12.2009 no one appeared and report has been received that the appellant is not residing in the given address for last 18-19 years as such this Court has directed forfeiting the bail bond and issue warrant of arrest but the same was not executed, therefore, this Court has directed for engagement of the counsel to represent him on 07.01.2010. Thereafter, the counsel through Legal Service Committee was directed to be appointed to defend the case.

This Court has again issued permanent non-bailable warrant against the appellant seeking his presence before the Court vide order dated

24.07.2024, but it could not be executed despite repeated orders, therefore, on 02.01.2026, this Court has directed to forfeit the bail of the appellant and fixed the matter on 13.02.2026 and on that day, the trial Court has submitted explanation that the record pertaining to the bail is not available with the trial Court. This Court again directed for taking action against the person who has taken bail on behalf of the appellant but again the appellant could not be traced out, therefore, vide order dated 20.03.2026, this Court has directed to the Secretary, High Court Legal Service Committee to appoint counsel who is well versed with the criminal law. In pursuance of direction passed by this Court, the Legal Service Committee appointed Mr. A.D. Kuldeep, Advocate to defend the matter who has finally argued the matter at length.

The case of the prosecution, in brief, is that on 20-08-1996 at about 11:00 pm. merg intimation (Ex. P/1) was given by Ajay Prabhakar that he is residing at Housing Colony, Industrial Area MIG-I/998 with his father and brother Basant Prabhakar. It has also been informed that his brother Basant Prabhakar was facing breathing problem therefore, he was getting treatment from the appellant/Dr. Seemanchal Swain and because of administration of injection, he has got swelling, therefore, he has taken him to the appellant for treatment and he has again administered injection which gave some relief to him. Thereafter he has seen that there is some blister at the injected place and after sometime he expired. It is also informed that the appellant is having forged degree of MBBS degree, MD Gynecologist and Child Specialist, therefore, prayed for taking action against him. The prosecution on the basis of merg intimation has recorded the statement and thereafter registered the FIR (Ex. P/13) at Police Station- Supela bearing Crime No. 350/1996 on 21/08/1996 for commission of offence under Section 419, 304 of the IPC.

The prosecution after usual investigation and collection of material, has submitted charge-sheet before the learned Judicial Magistrate First Class who committed the trial to the learned Sessions Judge for trial in accordance with law vide order dated 17.12.1996. On the basis of the material contained in the charge-sheet, learned trial Court framed charges against the appellant for alleged commission of offence under Sections 471 alleging that the appellant is fraudulently dishonest intension using certificate No. 129481 knowingly or believed to known that this document is a forged one. Learned trial Court while framing charge under 304 (Part-II) IPC has alleged that despite the fact that the appellant is not qualified doctor, he has conducted the treatment and administered injection at his clinic situated at Ramnagar Supela, Bhilai on 17.08.1996 at about 07:50 pm and knowing that it may cause death has committed the offence which is punishable under Section 304 (Part-II) IPC.

In order to bring home the guilt, the prosecution has examined as many as 9 witnesses ie., Sanjay Despandey (PW/1), Mohan Deshpande (PW/2), Prabhakar Deshpande (PW/3), Dr. S.K. Fatong (PW/4), M.S. Pareshwar (PW/5), Birendra Satpati (PW/6), K.S. Kunwar (PW/7), B.S. Sharma (PW/8), Jayabalak Prasad (PW/9) and exhibited 15 documents Ex. P/1 to P/15. Statement of the accused/appellant was recorded under Section 313 of Cr.P.C., in which he denied all the incriminating circumstances appearing against him in the prosecution case and pleaded his innocence and false implication in this case.

The learned trial Court, after hearing the counsel for the respective parties and after appreciating the oral and documentary evidence has convicted and sentenced the accused/appellant as mentioned in inaugural para of this judgment. Hence, this present appeal.

Learned counsel for the appellant submits that the impugned judgment is contrary to material on record and perverse based on no evidence, therefore, the same is liable to be set aside. He would further submit that the learned trial Court failed to see that PW/1 Sanjay Deshpande and PW/2 Mohan Deshpande, brothers of deceased Basant Deshpande have not supported the prosecution case, therefore, there is no evidence against the appellant and hence he ought to have been acquitted. He would further submit that the trial Court failed to see that the certificate (Annexure A./1) has not been legally and properly proved. He would further submit that there is no evidence for holding the appellant guilty under Section 471 of IPC as no ingredient to attract the said offence has been proved by the prosecution beyond reasonable doubt. There is nothing to hold that the appellant used any document fraudulently or dishonestly as genuine knowing or had reasons to believe that it is a forged document.

He would further submit that the learned trial Court failed to see that PW/4 Dr. S.K. Fatong has not given any opinion regarding cause of death. He would further submit that there were contradictions and omissions in the statements of the prosecution witnesses as such he should have been granted benefit of doubt. Alternatively, he would submit that if this Court ultimately comes to the conclusion that the conviction of the appellant is proper, then, considering the fact that the incident took place in the year 1996, this appeal is pending since 2000, the appellant is now aged more than 58 years; therefore, the jail sentence awarded to the appellants may be reduced to the period already undergone by him.

Ex adverso, learned counsel for the respondent/State supporting the impugned judgment would submit that learned Trial Court after minutely appreciating the oral and documentary evidence has rightly convicted and sentenced the appellant. As such, there is no scope for interference by this Court. This appeal being without any merit is liable to be dismissed.

I have heard learned counsel for the parties and perused the material available on record including the impugned judgment.

The prosecution to prove the guilt of the appellant that he is not qualified practitioner has examined Jaibalak Prasad (PW-9) who has supported case of the prosecution and has stated that the certificate bearing No. 129481 (Ex. P/14) was issued in the name of one Phulchand not in the name of the appellant. He has also stated that in Ex. P/15, the certificate which has been given to the Police Station incharge during investigation was issued by the Council wherein the signature of the then Manager was found and he knew about the signature. In the cross-examination, he has stated that no enquiry about the Article A was conducted by him but it might have been conducted by previous officer and nothing remained to bring on record to dilute the said examination-in-chief.

Sanjay Deshpendey (PW-1) who in examination-in-chief has reiterated the stand taken by his in the Merg Intimation (Ex. P/1) and in the FIR. This witness was extensively cross-examined by the defence who has stated that he has not enquired about the fact whether the degree of the appellant is forged or genuine.

Dr. S.K. Fating Medical Officer, Durg (PW-4) who has conducted the postmortem was examined before the trial Court and in the cross- examination he has admitted that he cannot definitely say that the deceased was administered injection.

Investigating Officer/M.S. Pareshwar (PW-5)-Sub Inspector who has stated that he has issued notice (Ex. P/8) under Section 91 of the Cr.P.C. to the appellant to produce the record pertaining to his medical degree but the appellant has informed that he is not having degree of MBBS, MD, Gynecological and Child Expert. This witness was cross-examined by the defence but nothing was brought on record to dilute the fact that no degree regarding medical qualification was produced by him.

The prosecution has examined K.S. Kunwar (PW-7) who has seized the degree and sent them for verification to the Ayurvedic and Yunani Medical Campus Bihar vide Ex. P/12 and also stated that he has seized the sign board which has been vide Article A, B & C wherein in Article A & B, the degree of the appellant has been mentioned as MBBS, MD, Gynecologist and Obstetrics Specialist. This witness was cross-examined by the defence but nothing has been brought on record to rebut the same.

The appellant was examined under Section 313 of the Cr.P.C. wherein in question No. 26 he has denied that any notice was given to him to produce document regarding his medical qualification.

Learned trial Court while convicting the appellant has recorded its finding that the prosecution is able to prove that the appellant is not a registered medical practitioner and his degree was found to be forged one, despite that he is providing treatment to the deceased and due to incorrect treatment done by the appellant, the patient succumbed to death. Thus, it has rightly convicted the appellant for commission of offence under Section 304-A of IPC for one year.

From the evidence of PW-5, Investigating Officer (PW-7) and statement of PW-9, it is quite vivid that the sign board was seized wherein the degree have been mentioned and a notice was issued to him to produce the same but it has not been produced by him. Even the certificate Ex. P/12 is also not issued in the name of the appellant as proved by the prosecution through the evidence of PW-9 which clearly proved that the appellant had no decree to practice as a medical practitioner. In this background the impugned judgment holding that the appellant was guilty of offence under Section 304-A of the IPC does not call for any interference as the prosecution is able to prove the case beyond reasonable doubt that the appellant had administered injection to the victim without having either a decree or a qualification or knowledge to do so; he was only a quack, as such, he had committed a fraud upon the victim by posing himself as a doctor administered medical care to a patient knowing fully well that he was not qualified to do so.

The act committed by the appellant cannot be said to be a medical negligence, but knowingly that he is not qualified to perform such pathy caused death of victim which goes to show that a person who was not qualified to do an act had done so. This act on the part of the appellant was done with the full knowledge that by his act he could have caused the death of the victim. He did not have the qualification of a doctor yet he projected himself as one. He had played with the life of the victim which has resulted into his death. As such, the essential ingredients to attract Section 304(A) of IPC i.e. negligency has been proved by the prosecution beyond reasonable doubt and due to negligency caused by the appellant, the victim succumbed to death. Thus, the finding of the trial Court that the appellant has committed an offence of causing death by negligence has been proved by the prosecution beyond reasonable doubt cannot be held to be suffers from perversity or illegality warranting interference by this Court. Hon’ble the Supreme Court in case of Ravi Kapur Vs. State of Rajasthan [(2012) 9 SCC 284] has examined the culpable negligency and has held in paragraph 13 as under:-

13. ‘Negligence’ means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the Court. In a given case, even not doing what one was ought to do can constitute negligence.

From the evidence brought on record by the prosecution, it is proved that the appellant himself impersonated as Doctor knowingly that he is not a registered medical practitioner and administered the injection to the patient causing death. Learned trial Court has rightly recorded its finding that the appellant is not having registered degree and despite that he is providing treatment to the patient as such he is a quack, therefore, he is responsible for causing death to the patient. The finding of the learned trial Court is in accordance with the law laid down by Hon’ble the Supreme Court in case of Poonam Verma Vs. Ashwin Patel & others [(1996) 4 SCC 332] wherein Hon’ble the Supreme Court in paragraph 49 to 51 has held as under:- “49. But we are of the positive opinion that Respondent No.1, having practised in Allopathy, without being qualified in that system, was guilty of Negligence per se and, therefore, the appeal against him has to be allowed in consonance with the maxim Sic Utere tuo ut alienum non loedas (a person is held liable at law for the consequences of his negligence), leaving it to repeat to himself the words of Dr.J.C. Lettsom (On Himself) : 'When people's ill, they comes to I, I physics, bleeds, and sweats em; Sometimes they live, sometimes they die. What's that to I? I lets 'em.'

50. Pramod Verma was 35 years of age and was getting Rs.5,700/- per month as salary. He died a young death which has deprived his dependants, namely; the widow, two children and parents, of the monetary benefit they were getting. They are entitled under law to be compensated.

Considering the above-stated factual finding and the law herein- above duly supported by the evidence regarding the fact that the petitioner is not a registered medical practitioner and even he has fraudulently used the certificate of another person, has rightly convicted him for commission of offence under Section 471 of IPC as the prosecution is able to prove beyond reasonable doubt that the appellant is using a forged document fraudulently or dishonestly which he knew that the said certificate has not been issued to him by the Council. Thus, the finding of the learned trial Court that the appellant has committed the offence under Section 471 of the IPC as well as Section 304A of IPC cannot be said to suffer from perversity or illegality warranting interference by this Court. The appeal is liable to be dismissed.

Accordingly, the appeal being devoid of merit is liable to be dismissed and is hereby dismissed.

The concerned trial Court is directed to issue permanent warrant against the appellant and also directed the concerned Superintendent of Police to execute the permanent warrant issued against the appellant for serving of the remaining sentence awarded to him subject to set off as he remained in incarceration after conviction by the trial Court from 19.05.2000 to 05.06.2000 and submit its compliance report to this Court. Sd/- (Narendra Kumar Vyas) JUDGE Raju