Kanagalakshmi v. Inspector of Police, Thingalur Police Station, Perundurai Taluk, Erode District

That the Appellants / Accused 1 and 2 namely 1) Kanagalakshmi (2)Yesudurai were directed to be released on bail as per the order ofthis Court dated 10.04.2003 and made in Crl.M.P.No.3244 of 2003 inC.A.No.583 of 2003.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 14.03.2011CORAMTHE HONOURABLE MR.JUSTICE S. NAGAMUTHU Crl.A.No.583 of 20031. Kanagalakshmi 2. Yesudurai @Durai .. . Appellants/A1 and A2VSInspector of Police,Thingalur Police Station,Perundurai Taluk,Erode District ... Respondent/Complainant . . . PRAYER:Appeal filed under Section 374 Cr.P.C against thejudgment dated 24.02.2003 made in S.C.No.164 of 2002 on file of theAdditional Sessions Court cum Fast Track Court, Erode. . . . For Appellants : Mr.G.Mohanakrishnan For Respondent : Mr.A.Sarvanan Govt.Advocate (Crl.side) . . . J U D G M E N T The appellants are the accused Nos.1 and 2 in S.C.No.164 of2002 on the file of the District and Sessions Judge (Fast Track CourtNo.I) Erode. They stand convicted for offences under Section 15(3)of Indian Medical Counsel Act 1956 and Section 316 and 304 (2)I.P.C. For the offence under Section 15 (3) of the Indian Medical https://hcservices.ecourts.gov.in/hcservices/ Council Act, they have been sentenced to under go S.I for one yearand for the offence under Section 326 I.P.C they have been sentencedto undergo S.I for 7 years and to pay a fine of Rs.1,000/- in defaultto undergo R.I for six months and for the offence under Section 304(ii) I.P.C., to undergo R.I for seven years. Challenging the saidconviction and sentence, the appellants are before this Court withthis appeal.2. The prosecution case in brief is as follows:i. The deceased Saratha (Hereinafter referred to as D.1) was thewife of P.W.1. She was in the advanced stage of pregnancy during themonth of June 2000. On 08.06.2000, the deceased developed labourpain. These two accused are husband and wife and they are not theregistered medical practitioners. However, they were running ahospital known as Ganga Hospital at Nathakattuvalsi village in ErodeDistrict and they were practicing as doctors. P.W.1 went to theseaccused and told them about the labour pain. These two accused cameto the house of P.W.1. On examining D.1, these two accused said thatthe pulse of D.1 was getting reduced and therefore, it was absolutelynecessary to admit her forthwith in their hospital to do surgery, soas to deliver the child. Accordingly, D.1 was admitted in the GangaHospital run by these accused at about 6.30 p.m. These accusedinformed P.W.1 that they conducted surgery and delivered the childout. P.W.1 went and saw the child. she was a female child and she wasalive. At about 11.00 p.m suddenly the child died. The next day,P.W.1 along with his relatives took the dead body and buried. But D.1still was undergoing treatment under these accused. Thereafter, atabout 11.00 p.m these two accused came to the house of P.W.1 and toldthe inmates that the condition of D.1 had become serious and theywanted to take D1 elsewhere for further treatment. P.W.1 took thesecond accused to P.W.2 who was owning a car. Accordingly, P.W.2 sentthe car. P.W.2 also accompanied. These two accused along with P.W.1and P.W.2 took the deceased in the car and proceeded to a hospitalnear Marakanam. The deceased (D1) was taken inside the hospital.They wanted P.Ws 1 and 2 to remain in the car. Within a short while,they returned to the car along with D.1 and told P.Ws 1 and 2 thatshe could be taken to a different hospital. Accordingly, they tookher to a different hospital. The doctor in that hospital,P.W.18, toldthat he could not treat the patient and therefore, at about 12.00midnight she was taken to Erode Government Hospital and admittedthere as in patient. P.Ws 1 to 3 were in the hospital. At about 6.30a.m. these two accused left the hospital. But they did not return.At about 8.00 a.m. D.1 died. Thereafter, P.W.1 came to know thatthese two accused are not really registered medical practitioners andthey are only quacks. Therefore, P.W.1 proceeded to the PoliceStation and preferred a complaint to P.W.15. ii) P.W.15, the then Sub Inspector of Police attached toThingalur Police Station, on 14.06.2000, received intimation from https://hcservices.ecourts.gov.in/hcservices/ the Government Hospital, Erode at about 11.40 a.m. about the death ofD.1. Ex.P.11 is the intimation. When he enquired, he came to knowthat P.W.1 had gone to Thingalur Police Station. He returned to thePolice Station at about 5.p.m. P.W.1 gave statement and the same wasreduced into writing by P.W.15. Ex.P.1 is the said complaint. Heregistered a case in Crime No.186/2000 under Section 316 and 304 PartII I.P.C Ex.P.13 is the First Information Report. He forwarded theFirst Information Report and the complaint to the JudicialMagistrate. Then he handed over the case for investigation to P.W.17,the then Inspector of Police attached to Thingalur Police Station. Ontaking up the case for investigation, P.W.17, proceeded to the placeof occurrence and prepared an observation mahazar Ex.P.2. in thepresence of P.W.4 and another witness. He recorded the statements ofP.W.1 and few more witnesses. He conducted inquest on the body ofD.1 on 15.06.2000 at 6.00 a.m. During inquest he examined P.Ws 1,2, 3, 4 and few more witnesses and recorded their statements. Heprepared Ex.P.21 the inquest report. Then he made a request (Ex.P.22)to the Tahsildar, Perundurai to exhume the body of the child.(Hereinafter referred to as D.2). Accordingly, the body of the childwas exhumed by P.W.12. After the body was exhumed, inquest wasconducted on the same. On 14.6.2000 at 8.30 a.m. P.W.11 Dr Ganesanwho was attached to the Government Hospital Gopichettipalayam waspresent. Thereafter, P.W.11 conducted autopsy on the body of D.2 andhe issued Ex.P.8 the post mortem certificate. He found the dead bodyof D.2 in a highly decomposed condition. Therefore, he did not offerany opinion as to the cause of the death. iii) On the body of D.1, P.W.10 conducted autopsy on 15.6.2000at 9.45 a.m. he found the following injuries:External Injury:"Sub Umbilical Vertical linear wound sutured withcontinuous suture of 16 cm long."Internal injuries:" ..... Uterus: 500 gm 14-16 weeks size. Uterus wasirregularly opened at the whole length of the fundusarea. No evidence of any previous suture – Edgesinfects, unhealthy, oedematous, and haemorrhagiccavity filled with pus and blood. Brain 100 gmconjested." She opined that the death may be due to shock and hemorrhage andpost natal septicaemia. P.W.17 conducted further investigation andlaid charge sheet .iv) On the basis of the above materials, the trial Court framedcharges under Section 15 (3) of the Indian Medical Council Act 1956and under Section 316 and 304 Part II I.P.C. The accused denied thecharges. Therefore, the trial Court went ahead with the trial.During the trial, on the side of the prosecution as many as 17witnesses were examined and 25 documents were exhibited. When the https://hcservices.ecourts.gov.in/hcservices/ incriminating materials were put to the accused under Section 313Cr.P.C. they denied the same as false. They filed written statementstating that they did not treat D.1 at all and therefore, they havenothing to do with the death of D.1 as well as D.2. v) Having considered all the above materials, the trial Courtfound them guilty under all the charges and accordingly, punishedthem. That is how, the appellants are before this Court with thisappeal.3. I have heard the learned counsel for the appellants and thelearned Government Advocate (Crl.side) and also perused the recordscarefully. 4. The foremost contention of the learned counsel for theappellants is that there is delay in preferring the complaint.According to him, though the child died as soon as its birth at thehospital allegedly run by these accused, there was no complaintgiven to the police immediately and Ex.P.1 was preferred belatedlyafter several days. The learned counsel would nextly contend thatthough it is stated that D.1 was admitted in the Governmenthospital, Erode, neither the doctor who treated her has beenexamined nor the medical records relating to the treatment given toD.1 have been produced. Therefore, the learned counsel would submitthat the prosecution has failed to prove that D.1 was subjected toany surgery by these accused. He would further submit that withoutknowing the nature of the treatment given at the Government Hospital,Erode, it would not be legal to hold that these accused wereresponsible for the death of D.1. He would further submit that thefirst accused has got a certificate issued to practise Siddha.Therefore, the allegation that the appellants were quacks cannot beaccepted. The learned counsel would further submit that D.1 and D.2were never treated by these accused and the evidence let in by theprosecution in respect of these allegations are not believable. Forthese reasons, the learned counsel would pray for the acquittal ofthe accused.5. But the learned Government Advocate (Crl.side) would submitthat P.Ws 1, 2 and 3 have categorically stated about the running ofthe hospital by these accused and the treatment given by them to D.1.He would also submit that P.W.10 also stated that the death was dueto improper surgery conducted on D.1 He would also submit that thoughit is true that the doctor who treated at the Government Hospital,Erode has not been examined, the same has not caused any dent in thecase of the prosecution. For these reasons, according to the learnedGovernment Advocate, the conviction and sentence imposed by the trialCourt does not warrant any interference at the hands of this Court. https://hcservices.ecourts.gov.in/hcservices/

6. I have considered the above submissions. P.W.3, is the fatherof D.1. P.W.1 is the husband of D.1. They have categorically statedabout the fact that the deceased was in advanced stage of pregnancy.They have also stated that these two accused are running a privatehospital. P.Ws 1 and 3 have further stated that D1 was admitted inthe said hospital for treatment. Though the said fact is disputed bythe accused, I do not find any reason to reject the evidences ofP.Ws 1 and 3 in this regard. P.W.2 would also state that these twoaccused were running a hospital and treated the patients. From theevidence of these three witnesses, it is crystal clear that these twoaccused were running a hospital and they were practising medicine.Admittedly, the second accused has got no authorization to practicemedicine. In so far as the first accused is concerned, the learnedcounsel would submit that Siddha Maruthuva Gurukgulam at Maduraiissued a certificate to her to practise Siddha. But at the sametime, the learned counsel is not in a position to inform the Courtas to whether the said Gurugulam has got any authority to issue thesaid Certificate to the first accused to practise medicine.Therefore, it is crystal clear that both the accused have practisedmedicine in gross violation of provisions of Indian Medical CouncilAct and thus the offence under Section 15 (3) of the Indian Medicalcouncil Act 1956 has been established and so they are liable to bepunished under the said provision.7. Now coming to the offence under Section 316 I.P.C. it is thecase of the prosecution that after the child was born, the child diedin the hospital run by these accused and the body was thereafterburied. Assuming that these allegations are true, still, it isdoubtful as to whether the said act of these accused would attractthe offence under Section 316 I.P.C. Section 316 I.P. reads asfollows: “ 316. Causing death of quick unborn child by actamounting to culpable homicide: Whoever does any actunder such circumstances, that if he thereby causeddeath he would be guilty of culpable homicide, anddoes by such act cause the death of a quick unbornchild, shall be punished with imprisonment of eitherdescription for a term which may extend to ten yearsand shall also be liable to fine.“A cursory reading of the above provision would make it clear that thesaid offence could be attracted if only death of such unborn childis caused. In this case, P.W.1 has stated that the child was alive.Therefore, the offence under Section 316 I.P.C has not beenestablished by the prosecution. To this extent the convictionrecorded by the trial court under Section 316 I.P.C needs to be setaside. https://hcservices.ecourts.gov.in/hcservices/

8. Now coming to the offence under Section 304 Part II I.P.C, Ifind that the trial Court was right in convicting these accused. Thereasons are as follows:i) P.W.1 has categorically stated in a vivid manner as to how thedeceased was admitted in the hospital run by these two accused fortreatment. He has further stated that after the child was born, thesetwo accused informed P.W.1 that surgery was conducted by them and thechild was accordingly delivered. P.W.10, doctor who conducted postmortem on the body of D.1 also found a surgical wound on theabdomen. She has further found that there was an irregular openwound at the uterus but the same was not closed properly. ii) It is the contention of the learned counsel for theappellants that after D.1 was admitted in the Government Hospital,Erode, surgery would have been done, which would have resulted in herdeath. Therefore, according to the learned counsel, the surgicalwound found at the abdomen of D.1 cannot be attributed to theseaccused. It is for this reason, the leraned counsel raised thecontention that the doctor who treated D.1 at the GovernmentHospital, Erode has not been examined and case sheet also has notbeen marked. This, according to the learned counsel, is fatal to thecase of prosecution. Though attractive, this argument deserves onlyto be rejected. iii) For a moment, I may refer to Exs. P,11 and P.12. Ex.P.11 isthe death intimation given by the duty doctor on 14.06.2000 at about8.35 a.m wherein he has stated as follows: "D1 died in ICCU. Suspicion in the surgery done priorto admission in the Erode Government Hospital and thebody was sent to mortuary. “Ex.P.12 is the intimation given to the police after the admission ofthe deceased on 14.06.2100 wherein the doctor has recorded “ postnatal septicaemia-the alleged cause - Suspicion in the surgery doneprior to admission.” The genuineness of these two documents has notbeen disputed by the accused, when they were proved in evidence.These two documents would go a long way to show that the surgery wasnot conducted at the Government Hospital Erode and as a matter offact, the surgery had already been conducted elsewhere. This clearlygo to show that the surgical wound found on the abdomen of D.1 wasmade only by these accused. Apart from that, in the evidence ofP.W.2, it is stated that these accused took the deceased in his carto the hospital of P.W.7 and 10 and thereafter, they took D.1 tothe Government Hospital Erode. The conduct of the accused todisappear from the Government Hospital after the condition of D.1became very serious also gives an adverse inference against theaccused. This part of the evidence of P.Ws 1 and 2 would go a long https://hcservices.ecourts.gov.in/hcservices/ way to show that the death was caused only by these two accused whoconducted surgery on the deceased.iv) Now coming to the cause of death of D1, P.W.10 hascategorically stated that the death was due to shock and hemorrhageand due to post natal sepaticaemia. As I have already stated P.W.10found that the abdominal surgical wound was closed but the irregularsurgical wound on the uterus was not closed. This was surely thecause for the death of D.1. So, I have no hesitation to hold thatthe death of D.1 was only caused by these two accused.v) Now coming to the offence, the learned counsel would rely ona judgment of the Hon’ble Supreme Court in Juggankhan VS The Stateof Madhya Pradesh reported in A.I.R.1965 Supreme Court 831 tocontend that at the most, the offence said to have been committed bythese accused would only fall under Section 304 A I.P.C But I am notable to agree with the said argument, for the reason that in the casebefore the Hon’ble Supreme Court, the case was registered against aHomoeopathy doctor. The said doctor administered 24 drops ofStramonium and a leave of dhatura without studying its effect andthe patient died of poisoning. The Hon'ble Supreme Court found thatthe poisonous contents of the leaf had not been satisfactorilyestablished and thus the prosecution failed to prove that the dosegiven to the deceased was necessarily fatal. Therefore, the Hon'bleSupreme Court has held that Section 299 would not be satisfied as itcannot be held that the accused administered the stramonium dropsand dhatura with the knowledge that he was likely by such an act tocause the death of the deceased. In those circumstances, the Hon'bleSupreme Court convicted the accused under Section 304-a I.P.C. Butthe facts of the present case are distinguishable. Here, admittedly,these two accused were not registered medical practitioners and didnot have any experience in surgery. Surgery is not an ordinary act,which can be done by any individual. Even trained doctors at timesare nervous of doing surgery because of the fear for consequences ofsuch surgery. Here, two quacks, who did not have any medicalknowledge had gone to the extent of performing surgery knowing theconsequences. Thus the act of the accused squarely falls underthird limb of Section 299 I.P.C. They could be attributed withknowledge that the act of surgery is likely to result in the death.Thus the offece said to have committed by these accused wouldsquarely fall under Section 304 I.P.C. Therefore, in my consideredopinion, the trial Court was right in convicting these appellantsunder Section 304 part II. I.P.C. 9. Now coming to the quantum of sentence, the learned counselwould submit that the appellants are wife and husband and there isno history of any bad antecedent either before or after theincident. He would further submit that the first appellant is a womanand therefore, some more leniency can be shown to her. He would https://hcservices.ecourts.gov.in/hcservices/ further submit that the accused were in jail for about one year.The learned Government Advocate is not in a position to dispute thesefactual aspects. 10. Having considered the totality of circumstances and thefacts placed before this Court, more particularly, the firstappellant is a woman and also the second appellant has got no otherbad antecedent, I am of the view that it would be in the interest ofjustice to reduce the substantive sentence of imprisonment to twoyears, insofar as the first appellant is concerned and to five yearsinsofar as the second appellant is concerned for the offence underSection 304 Part II I.P.C. 11. In the result, the appeal is partly allowed in thefollowing terms:i. The conviction and sentence imposed on both theappellants for the offence under Section 15 (3) of theIndian Medical Counsel Act is confirmed;ii. The conviction and sentence imposed on the appellants forthe offence under Section 316 I.P.C is set aside and they areacquitted of the said charge;iii. The conviction of the appellants under Section 304Part II is confirmed. However, the substantive sentence ofimprisonment imposed for the said offence by the trial Courtis reduced to two years R.I for the first appellant and itis reduced to Five years R.I for the second appellant.Sentences shall run concurrently;iv. The bail bond, if any, executed by the appellants shallstand discharged;v. In all other respects, the appeal stands dismissed.Sd/Asst.Registrar/true copy/Sub Asst.Registrarpal To1. The District Munsif cum Judicial Magistrate Perundurai2. -Do-Thro The Chief Judicial Magistrate, Erode https://hcservices.ecourts.gov.in/hcservices/

3. The Additional Sessions Judge cum Fast Track Court, Erode.4. -Do-Thro the Principal Sessions Judge, Erode5. The Superintendent, Central Prison, Coimbatore6. The Inspector of Police, Thingalur Police Station Perundurai Taluk, Erode7. The Public Prosecutor, High Court, Madras1 cc To Mr.G.Mohanakrishnan, Advocate, SR.18642 Crl.A.No.583 of 2003SP(CO)sra 01/04/2011