SUHARA K. Vs. STATE OF KERALA AND ORS.

JUDGEMENT

(1.) The petitioner is the de facto complainant and the respondents are the accused in CMP No. 1513 of 2013 on the files of the Judicial First Class Magistrate's Court-I, Hosdurg. The above complaint was filed under Sections 190(a), 200 of the Code of Criminal Procedure alleging the offence punishable under Section 304(A) of the Indian Penal Code, against the respondent Nos. 1 and 2.

(2.) The allegations in the complaint are as follows: The complainant's son Askar was suffering from Hernia and he was treated by the 1st accused at the District Hospital, Kanhangad. A preliminary laboratory test was conducted on 22/04/2009 and found that the patient was suffering from lungs infection also. Even then the 1st accused had taken a decision to conduct a surgery and the patient was admitted for Herniotomy surgery on 30/04/2009. The 2nd accused is the Anaesthetist attached to the hospital and he administered spinal anaesthesia to the patient Askar and the surgery was conducted by the 1st accused. Due to the complication in anaesthesia Askar became permanently unconscious, according to the complainant. The 1st and 2nd accused referred the patient to the Medical College, Pariyaram, even though the complainant requested them to refer the patient to Unity hospital, Mangalore for treatment. The patient was taken to the Medical College Hospital, Pariyaram, on the same day itself and made an attempt to rescue the said patient. On 08/05/2009 the patient was taken to Unity hospital, Mangalore for treatment. He was treated there for 91 days by a team of expert doctors. Finally the patient died on 08/08/2009 at Manzoor Hospital, Kanhangad. The post-mortem was conducted by a Police Surgeon from Pariyaram Medical College. The cause of death shown in the post-mortem certificate was "infective complication of the lungs following anaesthesia induced hypoxic brain damage". The 2nd accused administered spinal anaesthesia instead of general anaesthesia. The 2nd accused should not have administered spinal anaesthesia when the patient was suffering from lungs infection as disclosed by the lab report. Hence the death was caused by the negligent treatment by the accused.

(3.) On the basis of the complaint filed by the petitioner an FIR was lodged against the accused alleging the offence punishable under Section 304A of IPC as Crime No. 340 of 2009. An expert panel was constituted as per the requisition of the Investigating Officer in compliance with the directions of the Supreme Court of India in Jacob Mathew v. State of Punjab and Another, 2005 AIR(SC) 3180. The expert panel after examining the medical records found that there was no negligence on the part of the accused. On the basis of the expert opinion, the Investigating Officer filed a referral report before the Court as RC No. 424 of 2010 to drop the prosecution against the accused. Notice was issued to the de facto complainant on the referral report. Pursuantly the de facto complainant filed the above protest complaint alleging the offence under Section 304A of the IPC. The petitioner was allowed to adduce evidence in the enquiry under 202. The petitioner was examined as PW 1 and the Forensic Surgeon who conducted the post-mortem was examined as PW 2.