Full Judgment
1 Criminal Revision No.2135/2012 11/2/2013 Shri Manish Datt, Senior Counsel with Shri Rahul Sharma, counsel for the petitioner.
Shri Punit Shroti, Panel Lawyer for the respondent / State.
This petition has been preferred against order dated 10.10.2012 passed by the FiRs.Additional Sessions Judge, Ashta District Sehore in S.T.No.144/2012, framing charge under Section 304 of IPC against the petitioner.
According to the prosecution, on 10.7.11, Rajendra (Since deceased) aged about 10 years was referred to Index Hospital, Indore from Sevalaya Hat Pipalaliya and was admitted in ICU.
For last two days, deceased was suffering from fever.
The deceased was taken up to the petitioner for treatment, who injected some antibiotic on both thighs of the patient.
After suffering pain and agony of these injections for two days, patient was ultimately referred to and admitted in ICU as above.
After sometime of admission in ICU, patient died.
Police registered merg and thereafter registered a case under Section 304-A of IPC 2 Criminal Revision No.2135/2012 against the petitioner.
During investigation, while documents related to the educational qualification of petitioner was collected, then it was found that petitioner was working Public Health Worker, after completing training appointed by the Chief Medical & Health Officer, District Sehore and was not supposed and expected to give treatment like this, charge was converted into under Section 304 of IPC and charge sheet was submitted against him by the police Siddhiganj, District Sehore.
Vide impugned order, considering charge sheet, trial Court found charge under Section 304 IPC.
Order of framing of charge is challenged on the grounds that there is no evidence to show the intention or previous enmity of the petitioner with complainant to cause his death.
Since petitioner is working as a Public Health Worker duly authorized by CMO, he administered some treatment by tablets only.
There is no direct nexus between the death and the treatment given by the petitioner to the deceased.
Placing reliance on 2009 (2) CGLJ 22 Vidyut Kumar versus State of Chhatisgarh, learned counsel for the petitioner submits that as a result of treatment, right or wrong whatever, if patient 3 Criminal Revision No.2135/2012 dies then at the most act of the treating doctor is covered under Section 304-A of IPC.
No intention or knowledge can be attributed to the doctor for such death.
At the most it can be presumed that due to some rashness and negligence, death was caused.
Learned Panel Lawyer mainly emphasized on Manual for Health WorkeRs.in which it has been clearly stated that no Health Worker is expected to give treatment by injections.
Hence, act of wrong treatment can be presumed to have done with knowledge that it may cause death also.
Initially the case was registered under Section 304-A of IPC against the petitioner but after obtaining qualification and duty record etc prosecution chose to register a case under Section 304 of IPC, because knowledge can be gathered very well if a person, who is not trained doctor and in utter disregard of instructions, give injection to the patient resulted in his death.
On perusal of charge sheet and contents of the petition, it reveals that this is a dispute of the fact in this case whether petitioner treated the deceased by instilling injection or not.
Whether his knowledge or experience for treating patient was 4 Criminal Revision No.2135/2012 sufficient to make him entitled to give such type of treatment to the deceased or not.
In such situation, framing of charge under Section 304 of IPC, cannot be said to be illegal or wrong.
However, in view of the fact, that in the matter against the doct ORS.if death of patient is caused by wrong and defective treatment, commission of offence under Section 304-A IPC is normally presumed, it would be just and appropriate, if in alternative charge under Section 304-A IPC is also be framed against the petitioner.
Petition disposed of as indicated above.
Certified copy as per rules.
(Tarun Kumar Kaushal) JUDGE dcs/-