STATE OF KARNATAKA BY JAYANAGARA POLICE STATION SHIMOGA Vs. R.D. PRABHU S/O D.P. PRABHU AGED ABOUT 62 YEARS MEDICAL PRACTITIONER SHREE DATTA NURSING HOME (SHREE DATTA HOSPITAL) TILAK NAGAR, SHIMOGA DIST

JUDGEMENT

(1.) IN this appeal filed under Section 378(1) and (3) of Cr.P.C., the State has questioned the legality and correctness of the judgment and order dated 14.12.2004 passed by the Presiding Officer, Fast Track Court III, Shimoga, in Crl.A.No. 3/2001 allowing the said appeal and setting aside the judgment of conviction and order of sentence dated 13.12.2000 passed by J.M.F.C. II Court, Shimoga, in C.C.No. 1838/99, convicting the respondent herein for the offence punishable under Section 304 -A of IPC. The respondent was charge sheeted for the offences punishable under section 304 -A of IPC by the Jayanagar Police, Shimoga. The allegation made against the respondent -accused was that he being a Surgeon in Datta Nursing Home conducted surgery on the deceased Ramesh Shenoy, husband of P.W.1 Smt. Nirupama Shenoy on 06.02.1998 for removal of stone in gallbladder, a process which is medically termed as Cholecyctectomy and after the operation, by his negligent act, he left a mop (cotton swab) measuring 20 x 15 c.m. inside the abdominal cavity and closed the operative wound; that on account of presence of foreign body inside the abdominal cavity, the patient developed complication; that on 17.02.1993 he was shifted to K.M.C. Hospital., Manipal wherein after scanning, he was operated on 18.02.1998 by P.W.3 and during such operation, the mop measuring 20 x 15 c.m. (M.O.1) was removed and the presence of this foreign body inside the abdominal cavity resulted in development of infection which led ultimately to the death of the said Ramesh Shenoy on 26.02.1998. Thus, the respondent -accused is guilty of the medical negligence punishable under Section 304 -A of IPC.

(2.) THE respondent -accused upon his appearance before the learned Magistrate pleaded not guilty for the charge levelled against him and claimed to be tried. During the trial, the wife and son of the deceased were examined as P.Ws. 1 and 2. The Doctor who conducted surgery on the deceased in K.M.C. Hospital, Manipal, and removed foreign body left inside the abdominal cavity, was examined as P.W.3, while the two Investigating Officers were examined as P.Ws. 4 and 5. The medical records and other documents were produced and marked as Exhs.P1 to P32. During his examination under Section 313 of Cr.P.C., the respondent -accused denied all the incriminating circumstances appearing against him. In support of his defence, he examined D.W. 1 -Govinda. According to D.W.1, he was present at the time of surgery and it is on account of his negligence, the mop was left inside the abdominal cavity.

(3.) THE learned Appellate Judge on reassessment of oral and documentary evidence though concurred with the findings of the learned Magistrate with regard to the act on the part of the respondent in leaving the mop (M.O.1) inside the abdominal cavity of the deceased after conducting surgery before closing the operative wound, held that such an act cannot be termed as negligence of a higher degree as held by the Hon'ble Supreme Court in the case of Dr. Suresh Gupta -vs. - Government of N.C.T. of Delhi and Another - 2004 AIR SCW 4442. The learned Appellate Judge further noticed that even if the act on the part of the respondent -accused could be termed as negligent, there is no acceptable evidence to establish that this negligent act on the part of the respondent -accused was the ultimate cause for the death of the deceased. The learned Appellate Judge noticing that even as per the evidence of P.W.3 and the death report, the cause of death of deceased was Hepatic Encephalopothy i.e., damage of liver and histopathology report as reported in Ex.P.25, the liver damage was due to drug induce, held that the ultimate cause of the death was not relatable to the negligent act on the part of the respondent -accused. Therefore, the learned Appellate Judge opined that the accused cannot be held guilty of the offence punishable under Section 304A of IPC. The learned Appellate Judge held that the judgment of the trial Court to that extent is perverse and illegal. Therefore, the judgment of conviction was set aside and the accused was acquitted of the charge levelled against him. Against this judgment of acquittal passed by the learned Sessions Judge, the State is in appeal before this Court.