DALWINDER SINGH Vs. DIMPLE SINGLA

JUDGEMENT

(1.) Applicant, by way of instant application under Section 378(4) of the Code of Criminal Procedure ('Cr.P.C.' for short) seeks leave to appeal against the impugned judgement of acquittal.

(2.) Brief facts of the case, as noticed by the learned trial court in para 1 of the impugned judgement are that the complaint Dalwinder Singh approached the court with the assertions that Lakhwinder Kaur his wife was admitted in CHC Nihal Singh Wala on 31.5.2011 but as per information taken under Right to Information Act issued by accused Dimple Singola, above said Lakhwinder Kaur was admitted on 2.6.2011 in CHC Nihal Singh Wala. Receipt no.52 dated 20.5.2011 issued by CHC Nihal Singh Wala, original ultrasound report dated 21.5.2011 and X-ray film alongwith envelop bearing name of UK Hospital, Nihal Singh Wala receipt no.14 and 15 dated 1.6.2011 and OPD Slip dated 3.6.2011 issued by CHC Nihal Singh Wala. Lakhwinder Kaur wife of Dalwinder Singh was suffering from uterus problem that was a gynecological problem. The accused has advised to said Lakhwinder Kaur to get her uterus removed. So she got ready to do so. As per advice of accused, Dalwinder Singh got his wife Lakhwinder Kaur admitted in CHC Nihal Singh Wala to get remove her uterus by operation. On 3.6.2011 accused Dimple Singla, without getting requisite tests before conducting operation of removing of uterus, conducted operation for the said purpose. Without taking requisite tests of the patent Lakhwinder Kaur, which were most essential to be conducted before operation, which was gross medical negligence on the part of accused Dimple Singla. In this manner the accused did not performed her medical duty as a skillful and professional doctor. Every doctor who enters into medical profession has a duty to act with the reasonable degree of care and skill as per medical term implied undertaking. Breach of any such duties amounts to gross medical negligence as due to breach of implied undertaking the life of patient goes in danger and patient often loss his/her precious life and the guilty and negligent doctor was liable for prosecution. The accused had full knowledge that she does not possess requisite skill in operation of uterus removal and she was not competent to deal with such type of cases. However, inspite of this the accused conducted operation of Lakhwinder Kaur resultantly she died within three hours of operation on 3.6.2011 in CHC Nihal Singh Wala. Whereas, before the operation, patient Lakhwinder Kaur was absolutely fit by health. Nothing is on record which may show that she was not fit by health and she was not in position to undergo operation. These facts were clearly showing that the death of patient Lakhwinder Kaur was not natural rather due to gross medical negligence on the part of the accused. As per report dated 4.8.2011 issued under Right to Information Act, the accused Dimple Singla herself has stated that patient Lakhwinder Kaur was admitted on 2.6.2011 vide CR No.485/11 dated 1.6.2011 that means said Lakhwinder Kaur was admitted on 1.6.2011. The accused made alteration on the date of admission that is 2.6.2011 intentionally, willfully to cheat and defraud his client to conceal her said gross medical negligence. The date of admission was a material fact and any alteration in the same by the accused was material alteration and as per law material alteration comes under the definition of offences under Sections 420, 465, 468 and 471 of the Indian Penal Code. It was pertinent to mention here that the accused has stated in her report under Right to Information Act that above said Lakhwinder Kaur was died on her way to Moga from Nihal Singh Wala. On the contrary to this fact the accused stated in her said report that Patient Lakhwinder Kaur was referred to Civil Hospital, Moga at 4.5. PM on 3.6.2011. If patient Lakhwinder Kaur was referred to Civil Hospital, Moga then how the accused came to know that patient Lakhwinder Kaur died on the way to Moga from Nihal Singh Wala. In fact, this fact was in her knowledge because when the patient Lakhwinder Kaur was sent to Civil Hospital, Moga from Nihal Singh Wala then the accused was sitting in the Ambulance whereby patient Lakhwinder Kaur was being transported. At that time the husband of accused was also going on the car ahead to Ambulance and husband of patient Lakhwinder Kaur was sitting in the car of husband of accused. The accused had come with the patient Lakhwinder Kaur and complainant Dalwinder Singh due to her gross medical negligence made on her part at the time of operation. On reaching at Civil Hospital Moga, the accused performed a drama and asked to the complainant Dalwinder Singh to purchase blood bottle for the patient Lakhwinder Kaur, which was purchased by complainant. It was pertinent to mention here that in reply bearing no.597/NSW/11 dated 15.11.2011 the accused herself has referred. "Effort was made to revive her by me alongwith other doctors but we were unsuccessful." The reference of these words is clearly showing that something was happened wrong and gross medical negligence was made by the accused, only because of that the accused accompanied at the time of transportation of patient Lakhwinder Kaur from Nihal Singh Wala to Moga and she also compelled to take assistance of other doctors as mentioned in above said bold words. As per record of Civil Hospital, Moga, neither the patient Lakhwinder Kaur was brought in the said hospital nor she was admitted in the same. These facts and circumstances also show that the accused Dimple Singla was trying to conceal her gross medical negligence. After some time of purchasing of blood bottle the accused got cleared the death of patient Lakhwinder Kaur from some unknown doctor of Civil Hospital, Moga. When the complainant requested to conduct post mortem of dead body Lakhwinder Kaur, the complainant was advised to get conduct post mortem of Lakhwinder Kaur on the next day from CHC Nihal Singh Wala, so the complainant Dalwinder Singh put the dead body of Lakhwinder Kaur in the mortuary namely 'Sardarni Sukhninder Kaur Memorial Charitable Hospital, Luhara' and the complainant paid Rs.2200/- as mortuary charges vide receipt no.79 dated 4.6.2011. Complainant Dalwinder Singh requested to the accused to conduct post mortem of dead body of Lakhwinder Kaur then she flatly refused to do so in spite of hot exchange. Even when the complainant went to Civil Hospital, Baghapurana for the post mortem of Lakhwinder Kaur then the Medical Officer of Civil Hospital, Baghapurana, flatly refused and said that until the accused telephonically ask to conduct the post mortem of Lakhwinder Kaur, same will not be conducted. It was pertinent to mention here that in her reply bearing despatch no.597/NSW/11 dated 15.11.2011 the accused herself stated that "facility for conducting post mortem was available only in Civil Hospital, Moga and not at CHC Nihal Singh Wala or CHC Baghapurana." If it was so then why the accused advised to the complainant to get post mortem from CHC Nihal Singh Wala. The meaning thereby was that the accused wanted to postpone the matter with false advise to avoid her complications which may had come out upon post mortem and to hide her gross medical negligence. At the time of all the above said incidents Basant Singh son of Jeet Singh, resident of Village Baude and Gurmail Singh son of Nazar Singh, resident of village Baude were present with the complainant Dalwinder Singh. At the instance of above said Basant Singh etc. the complainant Dalwinder Singh cremated the dead body of Lakhwinder Kaur as it was deteriorating. On the application of complainant given under Right to information Act, a letter No.436/NSW/11 dated 4.8.2011 alongwith reply of accused Dimple Singla was sent to the complainant. Complainant felt aggrieved and he served a legal notice dated 3.10.2011 to the accused alongwith her department and its higher officials. On receiving legal notice, the department of accused made correspondence with the complainant as well as with the accused and her higher authorities and the higher authorities of the accused were directed to conduct a detailed inquiry, copy of that letter was sent to the counsel of the complainant vide Endst.no.9/118/2011-1/8265 dated 14.12.2011. Thereafter, complainant served a reminder dated 29.5.2012 against not conducting inquiry against the accused as per direction of Head Office of the accused, on the basis of which the head office of the accused had again directed to conduct a detailed inquiry regarding the death of Lakhwinder Kaur and to send a detailed report to the head office of the accused. But the accused was so influential lady that she sat on the order issued from Head Office and influenced to all her higher officers and they were compelled not to conduct any inquiry regarding the death of Lakhwinder Kaur, which was caused due to gross medical negligence of accused Dimple Singla. After the death of Lakhwinder Kaur, near the gate of Emergency Ward of Civil Hospital, Moga, a hot exchange between the complainant and the accused happened during which the accused threatened to get the complainant killed through Supari Killers, which was offence under Section 506 of the Indian Penal Code. The police did not take any action. Hence, the complainant filed the present complaint.

(3.) After leading the preliminary evidence by the complainantappellant, the learned trial court took the cognizance of the matter and issued the summoning order. Accused-respondent appeared. Having found a prima facie case, the learned trial court framed the charges against the accused. Accused pleaded not guilty and claimed trial.