Decided on August 07,1986

Dr. Ved Khuller Appellant
STATE Respondents


K.K. Gupta, J. - (1.) MRS . Ved Khuller is a doctor by profession and is running a clinic at Jammu. She has been challaned by Police Station Pacca Danga, Jammu for the commission of an offence under Section 304 -A, Ranbir Penal Code for allegedly causing death of Janki Devi because of negligence. She had filed this application under Section 561 -A, Code of Criminal Procedure for quashing the abovesaid proceedings pending in the court of Chief Judicial Magistrate, Jammu.
(2.) BRIEF facts of the case as alleged by the prosecution in the challan are that on August 9,1983, Dharam Chand, father of Janki Devi, reported that his daughter was married to one Puran Singh, son of Dharam Singh, resident of village Dhatrian, Tehsil Jammu, five years ago and she had given birth to a female child who is now aged four years. It was further reported by him that the relations of her daughter had become strained with her in -laws who used to beat her and one month earlier they beat her severely and turned her out from their house. She came to live with her parents and afterwards with the intervention of some respectable persons he sent her daughter to her in -laws. A day earlier he came to know that his daughter had died and he suspected her in -laws to be responsible for her death which according to him be in connivance with the doctor. On receipt of this report police initiated proceedings under Section 174, Code of Criminal Procedure and after obtaining post -mortem report they registered a case under Section 304 -A, Ranbir Penal Code against the Petitioner herein, which resulted in her prosecution. The case was produced in the court of Chief Judicial Magistrate, Jammu who has charged the Petitioner under Section 304 -A, Ranbir Penal Code. Learned Counsel appearing for the Petitioner has argued that there is not an iota of evidence on the file showing the involvement of the Petitioner in the case or her negligence in any manner. According to him the Petitioner has wrongly been charged. He has further argued that in fact the report was against the in -laws of the deceased Janki Devi and the Petitioner has wrongly been charged by the trial court, which charge cannot be sustained under law, in any manner. He has further submitted that proceedings against the Petitioner in fact amount to abuse of the process of the court and as such the proceedings are required to be quashed. On the other hand the learned Chief Government Advocate has pointed out that the medical report is against the Petitioner who performed the operation and because of her negligence Janki Devi died on the operation table.
(3.) I have perused the statements of the prosecution witnesses recorded by the police under Section 161, Code of Criminal Procedure. It does not come out from these statements that the Petitioner was in any manner negligent in causing the death of the deceased. The prosecution, it seems, has based their case on the medical report, i.e., post -mortem findings given by the Board of doctors. That finding is that the deceased died due to cardiac arrest as a result of surgical interference. Subsequently in regard to a query made by S.H.O. Police Station Pacca Danga the Board of doctors made clarification that surgical interference was done on genitalia of the deceased. They, however, declined to answer any other query regarding the negligence of the Petitioner in positive by stating that whether the death was due to negligence of the doctor or not was to be decided by the court and not by the Board of doctors and the Board was concerned only with the opinion regarding the cause of death. There is also on the file the explanation given by the Petitioner in regard to the query made by the investigating officer. In this query she has explained the circumstances which led to the death of the deceased. This letter written by the Petitioner to S.H.O. reads as under: Refer your No. 2317/5 -1 dated 16.11.1983 regarding the report of late Inder Kour, wife of Sarup Singh, caste Megh Hindu, R/o village TatriaL, Teh. and Distt. Jammu. The facts of the case are: On 6.8.1983 she came to my clinic for examination for secondary sterility. A routine examination was done and she was advised to have D&I (tubal potency test) done. She reported back on 8.8.1983. Before undertaking the minor procedure routine injections of siquil 10 mg and atropine 0.6 mg were given inter -muscular. She was also given injection W.K. wein as a precautionary measure for infection at about 2.00 p.m. After waiting for one hour as per usual routine she was put on the table at 3 p.m. The parts were cleaned with dettol swab. She became nervous for which she was reassured that this was nothing but cleaning of the area. The under Section turned to the other side for testing the uterine cannula. Suddenly she became restless and uttered 'leave me alone. I am feeling alright.' I asked the assistant to feel the pulse and meantime removed my own gloves and started feeling the pulse. Unfortunately the pulse had become imperceptible and the heart had also stopped. At once vigorous chest massage was started. Inj. Decadran given and inhalation started but all these efforts proved futile. The patient collapsed before any procedure could be undertaken due to cardiac arrest. It comes out from the contents of this letter that the deceased was taken to the operation theatre and while performing preliminaries for operation she became nervous and restless and afterwards died. The Board of doctors which conducted the post -mortem has not given any opinion whether surgical interference was the result of any negligence on the part of the Petitioner. The cause of death has been shown to be due to cardiac arrest. Now it is to be seen whether this cardiac arrest occurred due to the negligence of the Petitioner. In Modi's Medical Jurisprudence, 1977 Edition, at page 116, Modi has observed as under: 7. Fright, dread, anger or any other emotional excitement may lead to such a degree of shock as to result at once in a fatal termination probably due to haemorrhage. This will be more so in those persons who have an unstable nervous system or who have some organic disease, especially of the heart or large blood vessels. A woman, who was brushing her tooth, accidentally swallowed a mouthful of harmless mouth wash, she cried out that she had swallowed poison and immediately died. A young woman walking with her sweat -heart along a country road received such a fright from a horse pushing its white head through a hedge by her side that she collapsed in her companion's arm and died.;

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