S.N.H.Zaidi, J. - (1.) THIS revision has been directed against the order dated 15.12.2007, passed by Additional Sessions Judge, Court No. 5, Jhansi in Sessions Trial No. 19/07, State v. Praveen Kumar, rejecting the discharge application and framing the charge of Section 304 I.P.C. against the revisionist.
(2.) THE facts giving rise to this revision, in brief, are that an F.I.R. was lodged at police station Mawabad, Jhansi by Ramji Pateria (O.P. No. 2) with the allegations that his wife Smt. Rajeshwari was admitted on 14.4.2005 in the Life Line Hospital, Jhansi with the complaint of pain in her abdomen and chest by the revisionist, who was running that hospital and was also a Professor in Maharani Laxmi Bai Medical College Jhansi, and after several tests it was diagnosed that she was having a stone. On 16.4.2005, when the complainant asked for the discharge of his wife, the revisionist prescribed an injection of 'Penidure A-1 LA-12' to the patient. THE patient and the complainant informed the revisionist that the doctors of All India Institute of Medical Sciences (A.I.I.M.S.), New Delhi had prohibited the said injection to her and showed him the prescription slips of A.I.I.M.S. THE revisionist, however, insisted upon giving the said injection to her and accordingly that injection was given to Smt. Rajeshwari, but soon thereafter her body became stiff and she went in coma and ultimately died. On that report, a case under Section 304A, I.P.C. was registered against the revisionist, but after investigation the police submitted the charge-sheet under Section 304, I.P.C. and the Magistrate took cognizance thereon. Against the charge-sheet and the cognizance, the revisionist filed a petition (Criminal Misc. Application No. 11750/2005) under Section 482, Cr. P.C. before the High Court. THE said petition was dismissed on 6.4.2007 by this Court. After the case was committed to the Court of Sessions, the accused moved an application for his discharge under Section 227, Cr. P.C. before the trial Judge. THE learned lower court rejected the discharge application and observed that there were sufficient grounds to frame the charge of Section 304, I.P.C. against the accused. Being aggrieved with that order, the accused has filed this revision. I have heard the learned counsel for the revisionist and the learned A.G.A. for the State and perused the material on record. No counsel appeared for O.P. No. 2. The contention of the learned counsel for the revisionist is that even if the allegations of the prosecution are taken as undisputed, though denied, yet the offence of Section 304, I.P.C. is not made out against the revisionist as from the evidence on record it cannot be presumed that the revisionist had intended to cause the death of Smt. Rajeshwari or had knowledge that her death would be caused by giving that injection. It has also been contended that there is also no documentary evidence on record to show that she had died as a result of giving Penidure LA-12 injection or due to wrong medical treatment. It has been pointed that no post-mortem examination of the deceased was conducted and as per provisional death certificate given by the Hospital, which is part of Annexure-8 to the affidavit, the patient had died due to Cardio-pulmonary arrest. It has also been pointed out by the revisionist's counsel that neither the Investigating Officer had collected the prescription of the A.I.I.M.S. in which Penidure LA-12 injection was allegedly written as prohibitive to the patient, nor the complainant had given the same to the Investigating Officer or filed before the trial court and thus there is no documentary evidence on record to prima facie show that the said injection was prohibited to the patient and the accused had the knowledge of that fact. It has further been contended that since the lower court has not taken into consideration the above circumstances while deciding the discharge application of the accused-revisionist, therefore, the impugned order is bad in law.
(3.) THE fact that Penidure LA-12 injection was prescribed by the revisionist and it was given to Smt. Rajeshwari on 16.4.2005, is not disputed to the revisionist and is corroborated by the copy of the case sheet of Smt. Rajeshwari filed by the revisionist. The learned lower court, after referring to the order dated 6.4.07, passed by this Court on the petition of Section 482, Cr. P.C. has observed that since the High Court did not quash the charge-sheet filed under Section 304, I.P.C. and the prosecution evidence is the same, it would not be proper to draw any inference from the record contrary to the findings of the High Court. This shows that the trial court, while passing the impugned order, was influenced by the observations of this Court and did not independently consider the evidence to see whether from the evidence on record the offence of Section 304, I.P.C. is made out or not.;