State Of Maharashtra vs Dr. Baban Lahanu Gangurde

V. G. Bisht, J

1 This Criminal Appeal has been preferred by the Appellant-State against the judgment and order dated 22nd November, 2000 passed by the learned

Additional Sessions Judge, Malegaon, Nasik, in Sessions Case No. 74 of 1992 whereby the respondents/accused have been acquitted of the charges

under Sections 304, 304-A, 201, 176, 314, 197 r/w 34 of the Indian Penal Court (for short “IPCâ€) and under Section 33(2) of Maharashtra

Medical Practitioners Act, 1961 ( for short “the Actâ€​ ).

2 The prosecution case in brief is that on 26/06/1991 the informant took his wife, namely, Meenabai Bhalchandra Wani to Maulee Hospital for

abortion. The informant, however, came to know that Dr. B.L. Gangurde (A-1) was out of city but his wife Dr. Kamal Baban Gangurde (A-2) was

present who got admitted informant’s wife. According to prosecution, A-2 performed the operation, however, after the operation was over the

wife of informant started feeling severe pain in the abdomen. Necessary treatment was given to the wife of informant. At about 6-30 pm A-1 came

and examined informant's wife. A-1 then summoned Dr. Tushar  Shewale, Dr. Sanjay Shah, Dr. More and Dr. Anjum (A-3). After discussion, A-1

informed the informant that another operation will have to be performed and obtained his signature on a paper.

3 The prosecution alleges that A-1 after performing the operation the condition of informant’s wife deteriorated and unfortunately on 29/06/1991

at about 5.45 am informant’s wife died.

4 According to prosecution, the informant was satisfied that his wife died because of the negligence on the part of A-1 and A-2 and accordingly

lodged the report with Chavani Police Station, Malegaon, Nashik upon which C.R. No. 168/1991 for the offences punishable under Sections 304-A,

201, 176, 314, 197 r/w 34 of the IPC came to be registered. After completion of investigation not only the charge-sheet came to be filed against A-1

and A-2 but also against A-3 with an addition of Sections 304 and 471 of IPC and Section 33 of the Act.

5 The accused abjured their guilt and pleaded false implication.A-1 also filed his Written Statement (Exh. 63) in addition to the

statement recorded by the Court. Perused. However, the statement of A-3 was dispensed with as there was nothing incriminating against him.

6 Heard Mrs. Sonavane, learned APP. Mr. Patil, learned counsel for the respondents, has produced on record written notes of arguments. Perused.

7 With the able assistance of learned APP, we have gone through the entire record and the evidence of prosecution witnesses. In order to establish

the guilt of accused, the prosecution has in all examined 10 witnesses.

8 PW-3 Bhalchandra Narayan Wani, informant, stated in his evidence (Exh. 43) that on 26/06/1991 he got his wife admitted in Maulee hospital

belonging to A-1 and A-2 as he wanted to terminate the pregnancy of his wife. A-2 then gave two injections and thereafter was taken in operation

theater. After about half an hour nurse brought his wife from operation theater. He went near her and enquired about her health. According to him,

his wife told him that she is getting pain in the abdomen and therefore, he accordingly informed A-2. A-2 then gave injection, however, pain was not

subsiding. A-2 then telephoned Dr. Sanjay Shah, who came and gave some treatment to his wife. Inspite of that his wife did not get any relief. A-1

came in the hospital and also gave treatment. A-1 then told him that because of some complications one more operation is required to be done and

therefore, he gave his consent. Even after second operation there was no improvement. On 29/06/1991 his wife became serious and expired on the

very same day.

9 According to him, his relatives and friends visited house for condolences. One Dhruva (PW-4) told him that A-2 was not having any degree and

how she performed the operation of curetting. As he was mourning, he asked Dhruva to go to police station and lodge the complaint. On the basis of

report of Dhruva police visited the house of this witness upon which he lodged the report. He then proved his report at Exh. 44.

10 By and large, the substantive evidence of informant is in consonance with the contents of FIR. PW-1 Ravindra Narayan Wani (Exh.40), who is

brother of informant and PW-6 Narayan Bhila Wani (Exh.49, father of informant, in their respective evidence have deposed about their visit to the

hospital after having come to know the serious condition of the wife of informant. Later on, they were told about the death of wife of informant.

11 What we could gather from the evidence of PW-3 is that A-2 at the time of performing operation was not having the requisite qualification for the

purpose and this fact was told to him by PW-4. In such circumstances, all that is required to be seen is whether the prosecution has been able to

produce cogent and convincing evidence to prove that on the date of incident A-2 was not qualified medical practitioner and as also rashness and

negligence on the part of A-1. The prosecution it appears has also examined two medical officers and one anesthesian in support of its case. They are

PW-5, PW-7 and PW-8 respectively.

12 PW-4 Dhruva Narayan Wagh stated in his evidence (Exh.56) that he knows the accused. According to him, he had given application to the police

to make an enquiry in respect of wife of A-1 and it was in connection with the death of wife of informant. It is his further evidence that he had sought

enquiry about the educational qualification of A-2 who was not legally entitled to perform operation on lady patient.

13 On what basis this witness deposed or questioned the educational qualification of A-2 is not made clear in his examination-in-chief. On the

contrary, in the cross-examination he stated that he does not know personally about the educational qualification of A-2, however, information was

collected by him by reading newspaper. Thus the whole evidence of this witness is of hearsay nature and in our considered opinion does not advance

the case of prosecution in any manner.

14 PW-5 Dr. Pradeep Chandrakant Shah stated in his evidence (Exh.48) that he is M.B.B.S. D.G.O. and runs hospital, namely, “Ashwini

Hospitalâ€. It is his evidence that on the day of incident he was present in the hospital at about 12-30 pm. He received a telephonic message from

Mrs. Gangurde (A-2) and therefore, he visited the hospital of Dr. Gangurde. A-2 was present.

He was taken to operation theater and was informed about the operation done in the morning in respect of curetting. He was also asked by A-2 to

examine the patient. Accordingly he examined and found that the general condition of the patient was normal. He asked A-2 to keep the patient under

observation for 3/4 hours and if any complications are noted then he would see what to be done. He also advised A-2 to give heavy antibiotics and

saline to the patient. Thereafter, he left and did not get any call from A-2.

15 It appears that since this witness did not depose in a fashion suited to the prosecution he, with the permission of the Court, was declared hostile.

There is nothing in his cross-examination which can in any manner further the case of prosecution. Despite his hostility, we may remind here at once

that this witness was summoned at the first available opportunity by A-2. From the evidence of this witness it is not clear as to when he reached the

hospital of accused, he did make query as to who performed operation and rather on examination found the general condition of the patient normal.

Therefore, the evidence of informant to the effect that even after operation his wife complaining of pain in the abdomen doesn’t get support from

the mouth of this witness, who had found her general condition normal.

16 The next witness in line is PW-7 Dr. Tushar Ramchandra Shewale who stated in his evidence (Exh. 52) that he did Master of Surgery from Poona

University and his hospital is situated in Malegaon. He knows the accused. On the day of incident he received a telephonic message from Dr.

Gangurde to the effect that there is a patient in his hospital who is suffering from abdominal pain. Accordingly, he went to Maulee hospital. He

examined that lady patient. On clinical examination, he noticed somewhere on the intestine there was a hole and opined that operation is required to be

performed on the said patient. At about 10-00 pm Dr. More (PW-8) an anesthesian was called who gave anesthesia to the patient. At the beginning

Dr. Gangurde opened the abdomen of the patient and they noticed that there was faecal matter in the abdominal cavity. According to him, he removed

faecal matter with the help of instrument and then examined the abdominal organs with intestine. It is his further evidence that he noticed there were

two holes on intestine, one was small and another was big one. He stitched those holes with the help of thread. He also noticed a hole on the uterus

and brought to the notice of Dr. Gangurde, who stitched it. Thereafter, paritonial wash was given. He was also informed by Dr. Gangurde about

curetting operation done on the patient. It is his further evidence that the holes which were found on the intestine were because of traumatic

perforation.

17 The notable aspects emerging from the examination-in-chief of this material witness are thus; one, there was faecal matter in the abdominal cavity.

Two, on examination of abdominal organs, this witness found two holes on the intestine and one hole to the uterus. Third, the holes which were found

on the intestine were as a result of of traumatic perforation.

 18 Out of the above noted three material aspects, the important aspect being the finding of holes on the intestine and uterus and as also the

traumatic perforation being the cause of holes seen on the intestine. Interestingly, the evidence of this witness is totally silent as to how the traumatic

perforation was caused and so also the hole which was found on the uterus. Regarding traumatic perforation, if we go through the cross-examination

of this witness then it becomes clear the cause behind the traumatic perforation.

19 In the cross-examination, this witness stated that there was a massive infection in the abdominal cavity due to faecal matter, aerobic and in-aerobic

organism were responsible for massive infection. He then admitted that there was infected intera-paritonial fluid found in the paritonial cavity. He

further admitted that if the intestine is infected small trauma, external or internal, may cause perforation.

20 From the very evidence it is more than clear that there was a massive infection in the abdominal cavity because of presence of the faecal matter

and if the intestine is infected then small trauma, external or internal, may cause perforation. Thus, causing of traumatic perforation was because of

the intestinal infection on the ground of presence of faecal matter in the abdominal cavity, cannot be ruled out.

21 Equally important is an admission given in the cross-examination of this witness to the effect that he did not examine the patient from vaginal route

and as he did not do so it was difficult for him to say whether curetting operation was performed or not.

22 Thus, no satisfactory evidence is led by the prosecution to prove at the first instance of any such curetting operation having done by A-2. Even

otherwise whatever this witness has deposed in his examination-in-chief is deposed on the basis of his presence along with presence of A-1 and the

assistance rendered by him during the course of second operation. We say so because he admitted in the cross-examination that notes of pre-

operative, post-operative and intra-operative were not taken by him. Although, generally notes of the above stated stages are required to be noted

down. This also makes it simply clear that on the basis of memory this witness narrated the details of operation and the various deformities noted by

him in the body of patient.

23 Be that as it may, the emerging picture is that the evidence of this witness nowhere suggests as to any sort of negligence or rashness on the part of

accused. Needless to say the evidence of this witness instead of helping the prosecution rather paves the way for possible inference of the patient

having developed the intestinal infection leading to traumatic perforation on the intestine, an aspect which has already been discussed by us in the

preceding paragraphs.

24 The next witness is PW-8, Ashok Gangaram More, anesthesian. Except giving anesthesia to the patient he did nothing and therefore, the evidence

of this witness does not further the case of prosecution.

25 PW-10 Bhimrao Onkar Patil, Investigating Officer, stated in his evidence (Exh.60) that on the basis of complaint of PW-3 he registered Crime

No.168 of 1991, under Sections 304, 201, 176, 197 of the Indian Penal Code and then carried out investigation. He collected copies of the degrees

obtained by A-2 and then submitted one application to the Civil Surgeon, Civil Hospital, Nasik for obtaining his opinion and he then recorded

statements of relevant witnesses and after completing entire investigation forward the charge-sheet against the accused.

26 Surprisingly, we note with dismay, the evidence of this material witness nowhere reveals the nature of document qua A-2. What were the copies of

degrees he secured from A-2 is nowhere explained. What was the opinion of Civil Surgeon of Civil Hospital, Nasik is not brought on record. Even his

evidence nowhere claims the complicity of accused in the alleged offences.

27 Although the prosecution has alleged that A-2 was not medical practitioner and this witness had also recorded the statements of nurse and ward-

boy of the hospital belonging to accused, but those witnesses were never brought before the Court for the reasons best known to prosecution. They

certainly could have thrown light on the whole episode. In short, we opine that nothing is brought by the investigating officer in his evidence to prove

even remotely that A-2 is not a qualified medical practitioner.

28 Equally important aspect of the prosecution case is abnormal delay in filing the FIR. As per FIR and as also according to evidence of PW-3

informant as he and family members were mourning the death of his wife and their mental frame of mind was not good, he advised Dhruv (PW 4) to

lodge the complaint about the whole incident. It seems the explanation so offered by the informant does not sound convincing for the reasons to

follow.

29 We may usefully refer the case of Dilawar Singh V/s State of Delhi AIR 2007 SC 3234 wherein the Hon’ble Apex Court held that in criminal

trial one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords

opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the

chance of the unsoiled and untarnished version of the case to be presented before the Court at the earliest instance. That is why if there is delay in

either coming before the police or before the Court, the Courts always view the allegations with suspicion and look for satisfactory explanation. If no

such satisfaction is formed, the delay is treated as fatal to the prosecution case.

30 From the bare reading of the FIR and also the evidence of PW-3 informant, it appears that because of the grief and mourning of the death of his

wife, the informant on the visit of PW-4 to his house had asked him to lodge the complaint about the incident.

31 It is interesting to note from the evidence of PW-4 that he had lodged the report with Superintendent of Police, Malegaon Division, Malegaon (Exh.

57) on 02/08/1991. It may be noted here that the alleged incident had taken place on 29/06/1991 that is to say that this witness filed the report after

more than one month whereas in sharp contrast to the version of PW-3 informant, PW-6 father stated in their cross-examination that they followed

the mourning ( lqrd ) period for about 10 to 12 days and then admitted that after the mourning period was over, he and his sons started attending their

day-to-day business. This clearly falsifies the stand taken by the informant that since the family was grief struck he was unable to file FIR in time.

The cross-examination of PW 6-father leaves no manner of doubt that the family members had resumed their day to day activities after 10 to 12 days

of the mourning period. There was absolutely no reason for the informant to wait for about 80 days for lodging the report. In such circumstances, we

are of the considered view that the submission advanced by learned counsel for respondents/accused that there is unreasonable and unexplained delay

of 80 days for lodging the FIR is totally justified.

32 On the basis of evidence so discussed on the point of delay, we are unable to form satisfaction and the delay is treated as fatal to the prosecution

case.

33 In view of aforesaid evidences, which we have discussed and submissions of learned counsel for the parties, we are of considered opinion that

prosecution has not been able to establish its case beyond all reasonable doubts. We find no reasons whatsoever to interfere with the findings

recorded by the learned Trial Court in the impugned judgment by acquitting the accused. Therefore, we are of the view that there is no force in

Appeal. The Appeal preferred by the State is hereby dismissed.

34 Bail bonds, if any, stand cancelled.

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