PRAFUL B DESAI Vs. JYHOTI KOLANGRATH WACHALLI RAGHUNATH

JUDGEMENT

(1.) THIS is an application under section 482 of the Criminal Procedure Code. Applicant, who is arraigned as accused No. 2 in the complaint filed by respondent No. 1 Smt. Jyoti Raghunath and her husband, is, even according to the statement in the complaint, a well known and reputed surgeon and specialised in the treatment of cancer. Original Complainant No. 2 K. W. Raghunath was suffering from indifferent health having mild fever with indigestion. The ailment included discomfort, pain, and indigestion. He consulted his family Doctor Dr. N. R. Save and continued treatment prescribed by Dr. Save till March 1996. As the treatment did not lead to any satisfactory results, he was referred to one Dr. Banka who was initially arraigned as accused No. 1, but subsequently deleted as per order of the learned Sessions Judge dated 20-1-2000, whereby the learned Sessions Judge set aside the order taking cognizance of offence passed by the learned Magistrate against Dr. Banka in Revision Application No. 527 of 1998.

(2.) ALTHOUGH the complaint is lengthy it would be necessary to refer to principal allegations so far as the present applicant is concerned. When Mr. Raghunath was referred to Dr. Banka, he was examined and certain medical tests were conducted including Endosocopy and Multiple Biopsies. Dr. Banka diagonised that the Raghunath was suffering from Carinoma of Fundus including lower end of Oesophagus. Dr. Banka found that this growth is near the foodpipe and advised surgery. Thereafter Mr. Raghunath was referred to the present applicant, a well-known cancer surgeon, attached to Bombay Hospital. Raghunath was referred to Dr. Desai by Dr. Banka to get operated and believing on the suggestions and assurances of Dr. Banka, Raghunath consented for the operation. He was not at any time told that the operation to be performed was exploratory laparotomy which, according to the complaint is an operation to be performed in order to ascertain whether other operation can or should be performed. According to Raghunath the test reports clearly showed that it was an inoperable case and the intended surgery will prove detrimental to his health. Had he been informed earlier to the operation that it was exploratory laparotomy, he would not have consented in view of the express medical reports. Therefore, according to Raghunath, accused by not disclosing and wilfully concealing the facts that the case was inoperable one and by giving a contrary opinion induced him to submit to the operation, and thereby committed offence of cheating punishable under section 420 of the I. P. C.

(3.) HE was admitted to Bombay Hospital on 16-4-1996. Thereafter the applicant/accused and his team of doctors prescribed various tests such as X-ray, blood test, HIV test, Urine-test, Excreta test, CT scan, sonography etc. When Raghunath was taken to Dr. Desai, he did not bother to examine the patient nor did he bother to peruse the reports and directed one Dr. Gangwal to take him to operation theatre and his approach was perfunctory and casual. Dr. Desai told him not to worry as the cancer is located near the food pipe and can be removed by surgery and he would be alright within a couple of weeks. Relying on this, he consented to the operation. The operation was performed on 25-4-1996 from 9 a. m. to 11 a. m. at the Bombay Hospital. Complainant Raghunath was taken to the operation theatre when he was in fully conscious condition. It is the emphatic assertion that he did not see Dr. Desai till he was given anaesthesia and even after he retained consciousness he did not see Dr. Desai and therefore he strongly believe that Dr. Desai never operated upon him and the entire process was carried on some junior doctors. He came to know for the first time that it was an exploratory laparotomy when disclosed by Dr. Gangwal on 8-8-1996.