P B DESAI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE original accused no.1 (Dr.Desai) impugns conviction recorded by the learned Additional Chief Metropolitan Magistrate, 47 th Court, Esplanade, Mumbai on 5.7.2011 and confirmed in criminal appeal no.432 of 2011 by the learned Additional Sessions Judge for an offence under Section338 read with Section 109 of IPC, directing to suffer SI till rising of the Court and to pay Rs.50,000.00 as and by way of compensation, in default to suffer SI for Three months.

(2.) P .W.1 Padamchandra Singhi as complainant, initiated prosecution through Azad Maidan Police Station against accused no.1 and Dr.A.K.Mukherjee. In 1987, the complainant, due to aggravated physical condition of his wife Smt.Leela took her to New York for treatment of cancer and on the basis of the biopsy of the cervix, the Doctors in New York declared her case to be absolutely inoperable. The patient was brought to Bombay, advice of Dr.A.K.Mukherjee was taken as she started bleeding from vagina. Consequently, she was admitted at Bombay Hospital under Doctor Mr.P.B.Desai (Accused no.1) wherein different kinds of tests including C.T.Scan, blood analysis, Blood Transfusion report, examination of urine, microscopic examination of centrifugalised deposits were carried. The accused-applicant examined Smt.Leela and suggested removal of uterus by an operation. He was confronted by the complainant with the reports of New York Hospital as to 'was there is any need to operate the patient', the accused no.1, renown oncologist in the field, stated that he knew his job well. The complainant and Smt.Leela desired that if operation is to be carried on, it will be by accused no.1 himself. As per convenience and instructions of accused no.1, 22nd December,1987 was the date fixed for operation. On the date of operation, the complainant again requested accused no.1 to give a second thought to operate his wife. The accused no.1 did not hear but enter the operation theatre at about 8.30 a.m. The accused no.1 was carrying operation on one Mr.Oswal in adjoining room. During the course of opening of abdomen by Dr.Mukherjee, Dr.Mukherjee and Dr.Maniyar called accused no.1, he came upto the door of the operation theatre. Inspite of remaining at a distance of 6 ft. from the patient, accused no.1 did not examine her and simply asked Dr.Mukherjee to close the abdomen as operation could not be performed. Dr.Mukherjee called the complainant near the door of operation theatre and informed him that the operation could not be performed because of profuse oozing of ascetic fluids and plastering of intestines, so the abdomen which has been opened was to be closed. The patient Smt.Leela was indoor patient from 09.12.1987 to 4.5.1988, in room no.1005 under Accused no.1. Room no.1005 was earmarked for Dr.Desai, and never allotted to any other patient without instructions of Dr.Desai.

(3.) THE factual details in the operation theatre could be received by the complainant as his wife was given local anesthesia and she had heard everything, watched everything in the operation theatre. She told him, accused no.1 did not operate her. Dr.Mukherjee opened her abdomen, she was conscious throughout the operation proceeding, Dr. Mukherjee got upset and nervous when he opened her abdomen. The patient was mentally upset as accused no.1 has not operated inspite of promise. Patient started feeling pain in the operated part of the abdomen. There was lot of discharge from fistula. Her physical condition was deteriorating. Whatever she used to take, used to come out of the opening of the abdomen. The nurses used to dress the wound after cleaning the discharge, minimum 4 to 5 times a day. Thereafter, the patient was required dressing for near about 20 to 25 times within 24 hours which continued till she was in hospital. The accused no.1 did not come in the room no.1005 to see the patient Smt.Leela after the operation till she was in the hospital. The patient succumbed at Jaipur on 26.2.1989.