STATE OF GUJARAT Vs. MALTIBEN VALJIBHAI SHAH

JUDGEMENT

(1.) Criminal Appeal No. 1071 of 1981 is filed by the State of Gujarat for enhancement of sentence imposed by the learned Judicial Magistrate, First Class, Mundra on accused No. 2 in Criminal Case No. 94 of 1980. Criminal Appeal No. 1188 of 1981 is transferred from the Court of Sessions to this Court in view of the enhancement appeal filed by the State being the appeal filed by the accused-respondent against the order of conviction of simple imprisonment for seven days and a fine of Rs. 1000 and in default simple imprisonment for one month on she being found guilty under Sec. 304A of Indian Penal Code.

(2.) Heard learned A.P.P. Shri S. P. Dave for the State and learned Counsel Mr. A. D. Shah for the respondent accused No. 2. Before adverting to diverse contentions raised by the parties in this appeal challenging the conviction and asking for enhancement, it will be relevant to refer to the facts of the case. The case has arisen from an unfortunate incident which took place in village Mundra, District Kutch in the morning at about 8- 00 to 9-30 a.m. on 25-9-1979. Respondent accused No. 2 is a qualified Doctor practicing at Mundra. Deceased Ranjanbala went to the clinic for treatment of her child. In the course of the treatment of her child, she also complained that she has also a complaint of sinusitis and hypertension. The respondent treated her. In the course of treatment Ranjanbala (deceased) was first given S. P. test dose and then she was given injection Bistrepen half gram i.m. After the injection being given, she immediately complained of giddiness, pain in chest, perspiration, her pulses were fast and she was found feeble. Respondent realising that she had reaction of the injection given immediately started with anti-reaction treatment and to control the reaction she was given coronary injection Isophin 1 amp. i.m., injection, Coromine 1 amp. i. m. injection, Dexona 2 cc i.m. injection. She was inhalated oxygen, cardiac massage was also carried and injection Avil 2 cc was given, injection Cal.gln. 10 cc 10% I/V was given, injection Mephennine 2 cc was also given. But unfortunately, it appears that she succumbed to the reaction and expired at about 8-55 a.m. Because of the demise of Ranjanbala in the course of treatment by the Doctor, complaint was filed before the Police Sub-Inspector Mundra, who in his turn registered the offence against the respondent as accused No. 2 and her husband who had also joined in treatment of the deceased as accused No. 1. On completion of the investigation both were charge-sheeted and they stood the trial and the learned Judicial Magistrate, First Class acquitted accused No. 1, the husband of respondent and held the respondent No. 2 guilty of an offence punishable under Sec. 304A of Indian Penal Code and awarded simple imprisonment for seven days and a fine of Rs. 1,000 in default simple imprisonment for one month. This order of conviction and sentence is under challenge in this appeal.

(3.) Learned Counsel Mr. A. D. Shah for the respondent accused (accused No. 2) has challenged the conviction on the ground that even the facts as stated in the complaint if taken on its face value do not constitute any offence under Sec. 304A of Indian Penal Code. Mr. Shah contended that by no stretch of imagination the act of respondent can be said to be rash and negligent much less be criminal. Mr. Shah also contended that whatever precautions were required to be taken by Doctor were taken in the instant case and under no circumstances, respondent could be said to have committed any offence much less under Sec. 304A of I.P.C. Mr. Dave learned A.P.P. who appeared for the appellant-State has supported the judgment of the learned Judicial Magistrate, First Class. He further contended that the sentence imposed by the learned Magistrate is not in proportion to the offence alleged to have been committed by the respondent and therefore this is a fit case where the sentence should be enhanced.