SUNNY MATHEW Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS petition under Section 482 of the Code of Criminal Procedure was filed by the second accused in C.C. No. 942 of 2002 on the file of the Judicial Magistrate of the First Class, Pala. Annexure -V is the final report accusing the petitioner and another for offence under Section 304A read with 34 IPC. The Deputy Superintendent of Police, Pala, filed Annexure -V final report with a plea that on 12.5.1998 at the small hours, late Leelamani, wife of the defacto complainant was admitted at the Taluk Headquarters Hospital, Pala for confinement. The first accused was the Gynaecologist. The petitioner was the Anesthesiologist. Though late Leelamani had labour pains, delivery had not occurred. So she was subjected to caesarean at 12.15 P.M. on 13.5.1998. According to the prosecution, because of the rashness and negligence of both accused, bleeding following caesarean could not be arrested and therefore, Leelamani was referred to the Medical College Hospital, Kottayam, where she died at 5 P.M. due to bleeding following caesarean operation.

(2.) THE petitioner would seek to quash Annexure -V and the consequent proceedings with a plea that even by the allegations in the final report, the statement of the witnesses and the prosecution documents including the proceedings of the Medical Board, no rashness or negligence is revealed out as against the petitioner.

(3.) I have heard Sri. V.P.K. Panicker, the learned Counsel appearing for the petitioner and Smt. Lowsy, the learned Government Pleader. Perused the records including the copy of the case diary made available by the learned Government Pleader. Going by Annexure -V, I find that there is only a very vague allegations of negligence and rashness against the petitioner. There is no specific allegation. Annexure -III postmortem certificate would show that Leelamani died due to bleeding following caesarean operation. The caesarean operation and the consequent death is not disputed by the learned Counsel for the petitioner. But the very case is that there was no negligence on the side of the petitioner, who was the Anesthesiologist and even if there was any negligence, it can be attributed only against the first accused, who was the Gynaecologist. The proceedings of the Medical Board would show that after the caesarean operation, the uterus was contracted with vaginal bleeding. Vaginal examination showed that the bleeding would be from the rent found on the lip of the cervix. Despite of the resuscitative measures, patient died. The Medical Board arrived at a conclusion that adequate treatment with drugs of atonic post partum hemorrhage was given. The source of bleeding would be the rent found on the lip of the cervix. That being the case, Anesthesiologist cannot be found anyway rash or negligent. In the normal course, there is a little chance for having a rent in the anterior lip of the cervix in a case of caesarean. Probably there may be negligence on the side of the Gynaecologist in causing rent in the anterior lip of the cervix and leaving the rent without repairs including sutures. At no stretch of imagination, negligence can be attributed against the petitioner. Therefore, I find that Annexure -V final report and the consequent proceedings prosecuting the petitioner for offence under Section 304A along with the first accused is an abuse of process of law and is liable to be interfered under Section 482 of the Code of Criminal Procedure.