Pankajakshan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS WEDNESDAY, THE 26[TH] DAY OF JULY 2023 / 4TH SRAVANA, 1945 CRL.REV.PET NO. 1457 OF 2003** **AGAINST CRA 40/1997 OF ADDITIONAL SESSIONS COURT,THODUPUZHA SC 21/1995 OF ASSISTANT SESSIONS COURT,KATTAPPANA** ## **REVISION PETITIONER/APPELLANT/ACCUSED NO.1:** **PANKAJAKSHAN** **S/O.KUMARAN,** **K.P.SADANAM, MALAVIKA ROADARUKU, MULLOOR KARA, VIZHINJAM VILLAGE, NEYYATTINKARA TALUK** **BY ADV SRI.S.GOPAKUMARAN NAIR (SR.)** ## **RESPONDENT/COMPLAINANT/RESPONDENT:** **STATE OF KERALA REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, PEERMADE** ## **SRI.C.N.PRABHAKARAN, PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION CASE HAVING COME UP FOR ADMISSION ON 26.07.2023, ALONG WITH Crl.RC.4/2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.R.P. No.1457/03 & Crl.R.C. No.4/15 **-:2:-** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **WEDNESDAY, THE 26[TH] DAY OF JULY 2023 / 4TH SRAVANA, 1945** ## **CRL.RC NO. 4 OF 2015** **SUO MOTU CRL.REV.CASE REGISTERED AS PER ORDER DATED 12.2.2015 IN CRL.R.P. NO.1457/2003** ## **RESPONDENTS/ACCUSED AND STATE:** |**1**|**PANKAJAKSHAN**| |---|---| ||**S/O. KUMARAN,**| ||**K.P.SADANAM,**| ||**MALAVIKA ROADARUKU,**| ||**MULLOOR KARA, VIZHIJAM VILLAGE,**| ||**NEYYATTINKARA TALUK**| - **2 STATE OF KERALA REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, PEERMADE** **BY ADV SRI.S.GOPAKUMARAN NAIR (SR.) SRI.C.N.PRABHAKARAN, PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION CASE HAVING COME UP FOR ADMISSION ON 26.07.2023, ALONG WITH Crl.Rev.Pet.1457/2003, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.R.P. No.1457/03 & Crl.R.C. No.4/15 **-:3:-** ## **BECHU KURIAN THOMAS, J.** ## **-------------------------------------Crl.R.P. No.1457 of 2003 & Crl.R.C. No.4 of 2015** **--------------------------------------** Dated this the 26[th] day of July, 2023 ## **ORDER** Revision petitioner was the first accused in S.C. No.21 of 1995 before the Assistant Sessions Court, Kattapana and the first appellant in Crl.A. No.40 of 1997 on the files of the Additional Sessions Court, Thodupuzha. He, along with another accused, was indicted for the offences under sections 304, 419 and 420 read with section 34 of the Indian Penal Code, 1860, (for short 'IPC') apart from section 15(2)(b) of the Indian Medical Council Act, 1956 (for short “the IMC Act'). 2. After trial, the Assistant Sessions Court found the accused guilty of all the offences alleged and sentenced them to undergo rigorous imprisonment for seven years and a fine of Rs.5,000/- each for the offence under section 304 Part II, imprisonment for two years and a fine of Rs.2,000/- each for the Crl.R.P. No.1457/03 & Crl.R.C. No.4/15 **-:4:-** offence under section 419 IPC, apart from sentence of imprisonment for four years each and a fine of Rs.3,000/- each for the offence under section 420 IPC. Apart from the above, a sentence of imprisonment of one month each under section 15(2)(b) of the IMC Act was also imposed. On appeal to the Sessions Court, Thodupuzha in Crl. A. No.40 of 1997, the learned Sessions Judge allowed the appeal in part and found the second accused not guilty for any of the offences and she was acquitted, while the first accused was found not guilty for the offences under sections 419 and 420 IPC apart from section 15(3) of the IMC Act. However, his conviction under section 304 Part II IPC was altered to one under section 304A IPC and the sentence of imprisonment under section 304A IPC was directed to be maintained. 3. The first accused preferred Crl.R.P. No.1457 of 2003 before this Court, and when the said case came up for consideration on 17.07.2014, this Court directed initiation of suo motu proceedings and issued show cause to the accused as to why the original conviction under section 304 Part II of IPC should not be restored. On the above basis, Crl.R.C. No.4 of Crl.R.P. No.1457/03 & Crl.R.C. No.4/15 **-:5:-** 2015 was registered. 4. The prosecution related to the death of a 11-year-old girl by the name of Sharmi. She was admittedly an asthma patient. On 22.04.1991, her brother brought her to a hospital called J.K.Hospital at Pampanar and the revision petitioner – first accused, who was practicing as a Doctor examined the minor girl and prescribed medicines, which was administered to her by the second accused, who was working in the hospital as a nurse. The accused, both of whom did not possess the qualification to practice either as a doctor or a nurse, administered penicillin injunction to the girl and in less than an hour, the girl breathed her last and thereby, the accused committed the offences alleged. 5. The prosecution examined PW1 to PW14 and marked Ext.P1 to Ext.P11 apart from material objects MO1 to MO33, while the defence examined DW1 and marked the portions of statements of PW2 and PW5 as Ext.D1 and Ext.D2. After an elaborate analysis of the evidence adduced, the trial court found both the accused guilty for the offences under section 304 Part II apart from the other offences alleged and sentenced them to Crl.R.P. No.1457/03 & Crl.R.C. No.4/15 **-:6:-** undergo imprisonment, as mentioned earlier. However, the Appellate Court, by its judgment dated 11.01.2002, held that the prosecution had failed to prove that the first accused had not been registered as a Doctor with a Medical Council, and since no questions were put to the accused under section 313 of Cr.P.C regarding his qualification to practice medicine, the finding that the first accused had no qualification to practice medicine was set aside. In a similar fashion, it was held that there was nothing in evidence against the second accused regarding her competence to practice as a nurse. Since she was acting in accordance with the instructions of the first accused, she could not be said to be responsible for the death of the girl. However, the Appellate Court found the first accused guilty of the offence under section 304A and altered the conviction from section 304 Part II IPC but, set aside the conviction under sections 419 and 420 IPC, apart from the offence alleged under the IMC Act. 6. I have heard Sri.S.Gopakumaran Nair, learned Senior Counsel for the revision petitioner as well as Sri. C.N.Prabhakaran, learned Public Prosecutor on behalf of the State. Crl.R.P. No.1457/03 & Crl.R.C. No.4/15 **-:7:-** 7. The minor girl Sharmi died on 22.04.1991 after being administered penicillin injection by the two accused. First accused administered penicillin through the drip, while the second accused is alleged to have injected a test dose of penicillin. The post-mortem report Ext.P6 reveals that the minor girl died due to penicillin anaphylaxis reaction. The evidence of PW9 reveals that when penicillin injection is administered even as a test dose, it is essential to maintain the basic precautionary measures and provide oxygen if a reaction occurs. Evidence has been adduced by the prosecution to prove beyond reasonable doubt that oxygen was not available in the hospital either before or immediately after administering the penicillin injection. 8. The first accused, who was admittedly treating the patient, administered injections to the minor girl without taking the basic precautionary measures before administering the said injection. No doubt, the said act constitutes gross negligence on the part of the first accused. It has also come out in evidence that when the victim fell unconscious after being administered penicillin through injections as well as through an intravenous method (drip) and when PW1 enquired as to whether she must Crl.R.P. No.1457/03 & Crl.R.C. No.4/15 **-:8:-** be taken to another hospital, the first accused had informed that she will recover within 10 minutes. Later the first accused told PW1 to take her to another hospital. By the time the minor girl reached the Sevanalayam Hospital, she was declared as ‘brought dead’. 9. PW1 had also deposed specifically that, at the time when Ms.Sharmi was brought to the hospital, there was no other doctor other than the first accused and that he came to know that the first accused is a doctor from the board displayed in the hospital. PW9, who was the Assistant Professor of Forensic Medicine at the Medical College Hospital, Kottayam, has referred to the findings of the post-mortem and concurred that the death occurred due to penicillin anaphylaxis. As mentioned earlier, PW9 also deposed that, without keeping oxygen for emergency purposes, penicillin injection, even as a test dose, could not have been administered. Considering all the above circumstances and on an analysis of the evidence adduced, it is obvious that the treatment administered by the first accused to the minor girl Ms. Sharmi was grossly negligent. Therefore his conviction under section 304A IPC is justified. Crl.R.P. No.1457/03 & Crl.R.C. No.4/15 **-:9:-** 10. In the suo motu revision that has been initiated by this Court regarding the alteration of conviction from section 304 Part II to 304A IPC, it is evident that the Appellate Court had considered the failure of the trial court to put questions regarding the qualification of the accused. There was no material before the trial court to come to a conclusion that the first accused was not a doctor. Though a negative fact cannot be proved, it is essential in a criminal prosecution to put the incriminating circumstances to the accused during 313 questioning. 11. As held by the Supreme Court in **Asraf Ali v. State of Assam** [(2008) 16 SCC 328] “The object of Section 313 of the Code is to establish a direct dialogue between the court and the accused. If a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. Where no specific question has been put by the trial court on an inculpatory material in the prosecution evidence, it would vitiate the trial. Of course, all these are subject to rider whether they Crl.R.P. No.1457/03 & Crl.R.C. No.4/15 **-:10:-** have caused miscarriage of justice or prejudice. This Court also expressed a similar view in _S.Harnam Singh v. State (Delhi Admn.)_ while dealing with section 342 of the Criminal Procedure Code, 1898 (corresponding to Section 313 of the Code). Nonindication of inculpatory material in its relevant facts by the trial court to the accused adds to the vulnerability of the prosecution case. Recording of a statement of the accused under Section 313 is not a purposeless exercise.” 12. On perusing the 313 statement, it is seen that, no questions have been put to the first accused regarding his lack of qualification to practise as a medical doctor. Even the document Ext.P11, is only a letter from the Registrar of the Medical Council, Thiruvananthapuram, indicating that the first accused was not registered as a Doctor in the State Medical Council of Kerala. However, evidence has come out through the investigating officer PW13 as well as through PW9, the doctor, that there is nothing that prevents a person registered with other State Medical Councils or with the Indian Medical Council from practicing medicine in Kerala. Therefore, the finding of the Appellate Court that the prosecution had failed to prove that the Crl.R.P. No.1457/03 & Crl.R.C. No.4/15 **-:11:-** first accused did not have the qualification to practice medicine cannot be found fault with. The said finding, therefore, requires no interference. When there is no evidence to prove that the accused did not possess the qualification to practice medicine and that the deceased patient was brought to the hospital where the first accused administered medicines, it can only be presumed that in the course of treatment, the first accused acted with gross negligence. 13. Having regard to the above discussions, this Court is of the opinion that the suo motu revision initiated by this Court to restore the finding of guilt under section 304 Part II is without any merit. The suo motu revision petition is, therefore, liable to be dismissed. 14. However, as far as the revision petitioner is concerned, since the Appellate Court had altered the conviction of the revision petitioner from 304 Part II IPC to 304A IPC and observed that the sentence imposed by the lower court is maintained, an error is noticed. No sentence had been imposed by the trial court under section 304A. The maximum sentence that could have been imposed under section 304A is two years. Crl.R.P. No.1457/03 & Crl.R.C. No.4/15 **-:12:-** When the Appellate Court observed that the sentence imposed by the Trial Court is maintained, it could have only meant the maximum sentence of two years for the offence of 304A IPC and not seven years. Therefore this Court is of the view that the conviction under section 304A IPC is to be affirmed and the maximum sentence provided under the said section being two years, the words “maintaining the same sentence imposed by the trial court” can only mean the maximum sentence under section 304A IPC. 15. In the result, the conviction of the revision petitioner for the offence under section 304A IPC is justified and requires no interference. The words ‘sentence imposed by the lower court is maintained’ as mentioned in the Appellate Court judgment shall stand clarified to mean the maximum imprisonment of two years for the offence under 304A IPC. Hence both these revision petitions are dismissed. Sd/- **BECHU KURIAN THOMAS JUDGE** vps