Section 13(2) read with 13(1)(e) of the Prevention of Corruption Act, 1988 read with Section 109 of the Indian Penal Code.- Non- filing of original complaint not fatal when not relied upon it = whether the prosecution is bound to produce the original complaint/application filed by an unknown person, based on which an inquiry was initiated by the Anti Corruption Bureau.= the prosecution has categorically taken the stand that they do not propose to rely upon the information passed on to the Anti Corruption Bureau leading to an open inquiry against the accused persons. We fail to see how the accused persons are prejudiced by non-disclosure of the name of the person who sent the complaint as well as the original copy of the complaint received by the Anti Corruption Bureau. Situations are many where certain persons do not want to disclose the identity as well as the information/complaint passed on them to the Anti Corruption Bureau. If the names of the persons, as well as the copy of the complaint sent by them are disclosed, that may cause embarrassment to them and sometimes threat to their life. This complaint only triggered an enquiry. Ultimately, the first information was lodged on the basis of an open inquiry bearing VER No.31/1987 and it is based on that inquiry the first information report dated 13.10.1992 was registered. After completion of the investigation and after getting the sanction to prosecute accused No.1, charge-sheet was filed. PW1 also did not depose anything about the receipt of complaint/application in his examination-in-chief but receipt of the complaint/application and its contents having been relied upon by the defence during cross-examination of PW1. 11. We also emphasize that in the instant case the prosecution has relied upon the material which was collected during the investigation. It is not a case where some materials/documents were collected by the investigating agency during the investigations which are in favour of the prosecution and the prosecution is suppressing those documents. We are of the opinion that non-supply of the complaint or contents thereof do not, at all, violate the principle of fair trial. The said complaint has no relevancy in the context of this prosecution and in no manner, it would prejudice the petitioner. 12. Above being the factual and legal position, we find no reason to interfere with the order of the Bombay High Court and dismiss this special leave petition.

                            published in    http://judis.nic.in/supremecourt/imgst.aspx?filename=40662                           
       REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                      CRIMINAL APPEALLATE JURISDICTION


              SPECIAL LEAVE PETITION (CRIMINAL) NO.5897 OF 2013



Manjeet Singh Khera                                           …. Petitioner

                                   Versus

State of Maharashtra                                ….Respondent


                                  O R D E R



K.S. Radhakrishnan, J.



1.    We are,  in  this  case,  concerned  with  the  question  whether  the
prosecution is bound to produce the original complaint/application filed  by
an unknown person, based on which an  inquiry  was  initiated  by  the  Anti
Corruption Bureau.

2.    The petitioner (first  accused)  along  with  three  others  moved  an
application before the Special  Sessions  Court  of  Greater  Bombay  for  a
direction to the prosecution/Anti Corruption Bureau to produce the  original
complaint/application filed  by  an  unknown  person,  leading  the  accused
person to be charge-sheeted for  offences  under  Section  13(2)  read  with
13(1)(e) of the Prevention of Corruption Act, 1988 read with Section 109  of
the Indian Penal Code.

3.    The petitioner submitted that on the basis of that complaint  an  open
enquiry No.31/198 was conducted and following that  Special  Case  No.39  of
1999 was registered against the accused person.  It  was  brought  out  that
one complaint/application was received by the  Anti  Corruption  Bureau  and
copy of that application was forwarded to  the  Home  Department.   PW1  had
deposed that he could not disclose the name of the person who had sent  that
complaint.  It was mentioned therein that the first accused was having  huge
movable and immovable property at Bombay, Aurangabad and Nagpur.  The  first
accused wanted a copy of the original complaint to be  produced  before  the
court as well as the name of the person who had sent that complaint.

4.    The prosecution  resisted  the  application  preferred  by  the  first
accused contending that the  prosecution  would  not  be  relying  upon  the
complaint/application sought to be produced.  On the  other  hand,  discreet
enquiry was  conducted  based  on  that  application  and  after  collecting
sufficient materials, the prosecution lodged first  information  report  and
thereafter investigation was carried out.  Further it was pointed  out  that
prosecution cannot examine the person who  gave  the  complaint/application,
otherwise no person would  pass  on  any  secret  information  to  the  Anti
Corruption Bureau.

5.    The Special Judge, Prevention of Anti Corruption, found  no  basis  in
the application calling upon for the production of  the  original  complaint
as well as the name of the complainant,  who  had  sent  the  complaint  and
rejected  the  application  vide  his  order  dated  29.01.2011,  which  was
confirmed by the High Court on 25.02.2013, against which this special  leave
petition has been preferred.

6.    Shri Amol  Chitale,  learned  counsel  appearing  for  the  petitioner
submitted that the petitioner is not interested in getting the name  of  the
person who made the complaint, but  wanted  to  know  the  contents  of  the
complaint, which cannot be said to be secret information.   Learned  counsel
also submitted that prosecution cannot exercise privilege of  non-disclosure
of the information they have received,  which  lead  to  the  investigation.
Learned counsel placed reliance on  the  decision  of  this  Court  in  V.K.
Sasikala v. State Represented by Superintendent of Police (2012) 9  SCC  771
and submitted that when accused applies for inspection of documents  in  the
custody of the court, even at the advanced stage of the trial, the court  is
duty bound to supply those documents and the same reasoning  will  apply  in
the case of prosecution as well.

7.     Since the entire emphasis of the counsel for  the  petitioner  is  on
V.K.Sasikala case (supra), before embarking on the discussion on  the  issue
involved,  we  would  first  like  to  discuss  the  ratio  of  V.K.Sasikala
case(supra).   In  that  case,   the   appellant   -accused   had   demanded
copies/inspection of those  documents  which  were  not  relied  on  by  the
prosecution but at the same time, these  documents  formed  part  of  police
report and were in the custody of the Court.   Demand  was  made  after  the
prosecution had led the evidence and at the stage  of  Section  313  Cr.P.C.
questioning.  In this backdrop, the question  that  fell  for  determination
was as to whether the accused would be entitled to the documents which  were
part of police report under Section 173(5) of the Code of  Civil  Procedure,
and were in the custody of the Court.  The Court  explained  the  provisions
governing the process of investigation of a criminal charge, the  duties  of
the investigating agency and the role of the courts  after  the  process  of
investigation is over and its legal expositor was narrated in the  following
manner:

            “13.Without dilating on the said aspect of the matter  what  has
      to be taken note of  now  are  the  provisions  of  the  Code  with  a
      situation/stage after completion of the investigation of  a  case.  In
      this regard the provisions  of  Section  173(5)  may  be  specifically
      noted. The said provision makes  it  incumbent  on  the  investigating
      agency   to   forward/transmit   to   the    court    concerned    all
      documents/statement, etc. on which the prosecution proposes  to  reply
      in the course of the trial.  Section 173(5), however,  is  subject  to
      the provisions  of  Section  173(5)  which  confers  a  power  on  the
      investigating officer to request the court concerned  to  exclude  any
      part of the statement or documents forwarded under Section 173(5) from
      the copies to be granted to the accused.

            14.The court having jurisdiction to deal  with  the  matter,  on
      receipt of the report and the  accompanying  documents  under  Section
      173, is next required to  decide  as  to  whether  cognizance  of  the
      offence alleged is  to  be  taken  in  which  event  summons  for  the
      appearance of the accused before the court is to be issued.   On  such
      appearance, under Section 207 Cr.P.C, the court concerned is  required
      to furnish to the accused copies of the following documents:

            1. The police report;

            2.The first information report recorded under Section 154;

            3.The statements recorded under sub-section (3) of  Section  161
      of  all persons whom  the  prosecution  proposes  to  examine  as  its
      witnesses, excluding therefrom any part in regard to which  a  request
      for such exclusion has been made by  the  police  officer  under  sub-
      section(6) of Section 173.

            4. The confessions and statements, if any recorded under Section
      164;

            5. Any other document or relevant extract thereof  forwarded  to
      the Magistrate with the police report under sub-section (5) of Section
      173.

            15. While the first proviso to Section 207 empowers the court to
      exclude from the copies to be furnished to the accused  such  portions
      as may be covered by Section 173(6), the second proviso to Section 207
      empowers the court to provide to the  accused  an  inspection  of  the
      documents instead of copies thereof, if, in the opinion of  the  court
      it is not practicable to furnish to the  accused  the  copies  of  the
      documents because of the voluminous content thereof. We would like  to
      emphasise, at this  stage,  that  while  referring  to  the  aforesaid
      provisions of the Code,  we  have  deliberately  used  the  expression
      “court” instead  of  the  expression  “Magistrate”  as  under  various
      special enactments the requirement of commitment of a case to a higher
      court (Court of Session) by the Magistrate as mandated by the Code has
      been dispensed with and the Special Courts constituted under a special
      statute have been empowered to receive the report of the investigation
      along with the relevant  documents  directly  from  the  investigating
      agency and thereafter  to  take  cognizance  of  the  offence,  if  so
      required.”



8.    The Court also noticed that seizure of large number  of  documents  in
the course of investigation of a criminal case is a common  feature.   After
completion of the process of investigation  and  before  submission  of  the
report to the Court under Section 173 Cr.P.C, a fair amount  of  application
of mind on the part of the investigating agency is inbuilt in  the  process.
These documents would fall  in  two  categories:  one,  which  supports  the
prosecution case and other which supports the accused.  At this stage,  duty
is cast on the investigating officer to evaluate the two sets  of  documents
and materials collected and, if required, to exonerate the accused  at  that
stage itself.  However, many times it  so  happens  that  the  investigating
officer ignores the part of seized documents which favour  the  accused  and
forwards to the Court only those documents which supports  the  prosecution.
If such a situation is pointed out by the accused and those documents  which
were supporting the accused and have not been forwarded and are not  on  the
record of the Court, whether the prosecution  would  have  to  supply  those
documents when the accused person demands them?  The Court  did  not  answer
this question specifically stating that the said question did not  arise  in
the said case.  In that case, the documents  were  forwarded  to  the  Court
under Section 173(5) Cr.P.C. but were not relied  upon  by  the  prosecution
and the accused wanted copies/inspection of  those  documents.   This  Court
held that it was incumbent upon the trial court  to  supply  the  copies  of
these documents to the accused as that entitlement  was  a  facet  of  just,
fair and transparent  investigation/trial  and  constituted  an  inalienable
attribute  of  the  process  of  a  fair  trial  which  Article  21  of  the
Constitution guarantees to every accused.  We would like  to  reproduce  the
following portion of the said judgment discussing this aspect:

      “21.The issue that has  emerged  before  us  is,  therefore,  somewhat
         larger than what has been projected by the State and what has been
         dealt with by the High Court. The question arising would no longer
         be one of compliance or  non-compliance  with  the  provisions  of
         Section 207 Cr.P.C. and would travel beyond the  confines  of  the
         strict language of the provisions of Cr.P.C. and  touch  upon  the
         larger  doctrine  of  a  free  and  fair  trial  that   has   been
         painstakingly built up by the courts on a purposive interpretation
         of Article 21 of the Constitution. It is not the stage  of  making
         of the request; the efflux of time that has occurred or the  prior
         conduct of the accused that is material. What is  of  significance
         is if in  a  given  situation  the  accused  comes  to  the  court
         contending  that  some  papers  forwarded  to  the  court  by  the
         investigating agency have not been exhibited by the prosecution as
         the same favours the accused the court must concede a right to the
         accused to have an access to the said documents,  if  so  claimed.
         This, according to us, is the core issue in the case which must be
         answered affirmatively. In  this  regard,  we  would  like  to  be
         specific in saying that we find it difficult  to  agree  with  the
         view taken by the High Court that the  accused  must  be  made  to
         await the conclusion of the trial to test the  plea  of  prejudice
         that he may have raised. Such a  plea  must  be  answered  at  the
         earliest and certainly before the conclusion of  the  trial,  even
         though it may be raised by the accused belatedly. This is how  the
         scales of  justice  in  our  criminal  jurisprudence  have  to  be
         balanced.

      23.1.   xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx”



9.    Keeping in mind the principle of  law  and  ratio  laid  down  in  the
aforesaid case, we now proceed to deal with the  case  at  hand.   As  noted
above, the petitioner wants a copy of the complaint which  was  received  by
the Anti-Corruption Bureau.  What is to be borne in mind is that this was  a
complaint given by some person to  the  Anti-Corruption  Bureau  which  only
triggered the  investigation.   Thus,  this  complaint  simply  provided  an
information to the Anti-Corruption Bureau and is not the foundation  of  the
case or even the FIR.  In fact,  Anti-Corruption  Bureau,  thereafter,  held
its  own  independent  investigation  into  the  matter  and  collected  the
material which was forwarded to  the  Home  Department  and  on  that  basis
challan was filed  in  the  Court  pointing  out  that  sufficient  material
emerged on the record as a result  of  the  said  investigation  to  proceed
against the petitioner for offences under the provisions  of  Prevention  of
Corruption Act read with Section 109 of the IPC.  In the final report  under
Section 173(5) Cr.P.C., this complaint was never  forwarded.   Thus,  it  is
not a part of police report and is  not  in  custody  of  the  trial  court,
unlike the situation in V.K.Sasikala case (supra).  No  reliance  is  placed
on the documents by the prosecution either.   It  is  not  even  a  document
which would support the case of the petitioner in  any  manner.   Hence  the
judgment of V.K.Sasikala (supra) would have no application  to  the  instant
case.


10.    We  state  at  the  cost  of  repetition  that  the  prosecution  has
categorically taken the stand that they do not  propose  to  rely  upon  the
information passed on to the Anti  Corruption  Bureau  leading  to  an  open
inquiry against the accused  persons.   We  fail  to  see  how  the  accused
persons are prejudiced by non-disclosure of the name of the person who  sent
the complaint as well as the original copy of the complaint received by  the
Anti Corruption Bureau.  Situations are many where certain  persons  do  not
want to disclose the identity as well as  the  information/complaint  passed
on them to the Anti Corruption Bureau.  If the  names  of  the  persons,  as
well as the copy of the complaint sent  by  them  are  disclosed,  that  may
cause embarrassment to them  and  sometimes  threat  to  their  life.   This
complaint only triggered an enquiry.  Ultimately, the first information  was
lodged on the basis of an open inquiry bearing  VER  No.31/1987  and  it  is
based on that inquiry the first  information  report  dated  13.10.1992  was
registered.  After completion of the investigation  and  after  getting  the
sanction to prosecute accused No.1, charge-sheet was filed.   PW1  also  did
not depose anything  about  the  receipt  of  complaint/application  in  his
examination-in-chief  but  receipt  of  the  complaint/application  and  its
contents having been relied upon by the defence during cross-examination  of
PW1.

11.   We also emphasize that in the instant case the prosecution has  relied
upon the material which was collected during the investigation.  It  is  not
a case where some materials/documents were collected  by  the  investigating
agency during the investigations which are in favour of the prosecution  and
the prosecution is suppressing those documents.  We are of the opinion  that
non-supply of the complaint or contents thereof do not, at all, violate  the
principle of fair trial.   The  said  complaint  has  no  relevancy  in  the
context of this prosecution  and  in  no  manner,  it  would  prejudice  the
petitioner.


 12.  Above being the factual and legal  position,  we  find  no  reason  to
interfere with the order of the Bombay High Court and dismiss  this  special
leave petition.



                                        ………………………………..J.
                                        (K.S. Radhakrishnan)



                                        ……………………………..J.
                                        (A.K. Sikri)

New Delhi
August 21, 2013

Sections 498A and 304B of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC) and Sections 3, 4 and 6 of the Dowry Prohibition Act (hereinafter called the ‘DP Act’). = What is material contradiction and the material omissions =It is well settled legal proposition that while appreciating the evidence, the court has to take into consideration whether the contradictions/omissions were of such magnitude so as to materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements in relation to trivial matters, which do not effect the core of the case of the prosecution, must not be made a ground for rejection of evidence in its entirety. The trial court, after going through the entire evidence available, must form an opinion about the credibility of the witnesses, and the appellate court in the normal course of action, would not be justified in reviewing the same, without providing justifiable reasons for doing so. Where the omission(s) amount to a contradiction, creating a serious doubt regarding the truthfulness of a witness, and the other witnesses also make material improvements before the court in order to make the evidence acceptable, it would not be safe to rely upon such evidence. The discrepancies in the evidence of eyewitnesses, if found not to be minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, the witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence available or with a statement that has already been recorded, then in such a case, it cannot be held that the prosecution has proved its case beyond reasonable doubt.; Recording a finding against the medical evidence is perverse = The defence version has been that Shanthi, deceased, had developed illicit relations with one Raju, a close friend of her brother Manimaran (PW.2) and was pregnant at the time of marriage. The Trial Court accepted this version in spite of the fact that the medical evidence was otherwise. Dr. B.R.S. Kashyap (PW.17) mentioned in the post-mortem report (Ex.P-12) that the uterus was intact. Subsequently, an explanation was specifically sought on 2.2.1995 as to whether Shanthi was pregnant at the time of death. Dr. Kashyap (PW.17) opined that she was not pregnant at the time of post-mortem examination. Dr. Kashyap (PW.17) denied the suggestion that he had issued report (Ex.P-14) in collusion with the complainant to the effect that she was not pregnant. 20. The Trial Court placed reliance on the medical history (Ex.P-10) mentioned in the Accident Register of the hospital that Shanthi had 3 months pregnancy. We have examined the original documents also, there is nothing on record to show as at whose behest remarks had been recorded therein. Thus, the finding of the Trial Court about pregnancy of Shanthi recorded by the Trial Court is not worth acceptance.; Duty of accused under sec. 313 Cr.P.C. to give explanation =He did not give any version about the incident, rather pleaded a false defence that Shanthi, deceased, had developed illicit relationship with Raju, a friend of her brother Manimaran, (PW.2) and was pregnant before marriage. To question no. 32, as to whether he wanted to say anything, his reply was only `No’. 23. It is obligatory on the part of the accused while being examined under Section 313 Cr.P.C., to furnish some explanation with respect to the incriminating circumstances associated with him, and the Court must take note of such explanation even in a case of circumstantial evidence in order to decide whether or not the chain of circumstances is complete. When the attention of the accused is drawn to circumstances that inculpate him in relation to the commission of the crime, and he fails to offer an appropriate explanation, or gives a false answer with respect to the same, the said act may be counted as providing a missing link for completing the chain of circumstances. (Vide: Munish Mabar v State of Haryana, AIR 2013 SC 912). When sec. 113 and 116 Evidence Act comes in to play =The prosecution successfully proved its case and, therefore, provisions of Section 113 of the Evidence Act 1872 come into play. The appellant/accused did not make any attempt, whatsoever, to rebut the said presumption contained therein. More so, Shanthi, deceased, died in the house of the appellant. He did not disclose as where he had been at the time of incident. In such a fact-situation, the provisions of Section 106 of Evidence Act may also be made applicable as the appellant/accused had special knowledge regarding such facts, though he failed to furnish any explanation thus, the court could draw an adverse inference against him. 26. In view of the above, the findings recorded by the Trial Court on each issue had been perverse and the High Court has rightly reversed the said findings. The conduct of the appellant/accused during the trial also disentitled him of any indulgence whatsoever. The appeal lacks merit, and is, accordingly dismissed.

                published in      http://judis.nic.in/supremecourt/imgst.aspx?filename=40665                                     
   Non-Reportable


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                       CRIMINAL APPEAL NO.2280 of 2009




     S. Govidaraju
     …Appellant


                                   Versus


     State of Karnataka
           …Respondent




                               J U D G M E N T




      Dr. B.S. CHAUHAN, J.




      1.    This appeal has been preferred against the  judgment  and  order
      dated 6.6.2007, passed by the High Court of Karnataka at Bangalore  in
      Criminal Appeal No.1146 of 2000, preferred by the  State  against  the
      judgment and  order  of  the  Sessions  Judge,  Bangalore  city  dated
      8.6.2000, passed in  Sessions  Case  No.550  of  1995,  by  which  and
      whereunder, the appellant stood acquitted of  all  the  charges  under
      Sections 498A and 304B of the Indian  Penal  Code,  1860  (hereinafter
      referred to as ‘IPC) and Sections 3, 4 and 6 of the Dowry  Prohibition
      Act (hereinafter called the  ‘DP  Act’).  The  High  Court  on  appeal
      convicted the appellant under Section 304B IPC and awarded a  sentence
      of 7 years; under Section 498A IPC awarded the sentence for  a  period
      of 3 years and also a fine of Rs.5,000/- was imposed,  and in default,
      to undergo further sentence  of  6  months.  The  appellant  was  also
      convicted under Section 3 of DP Act and imprisonment for a period of 5
      years was awarded alongwith a fine of Rs.10,000/-, and in  default  to
      undergo imprisonment  for  one  year;  under  Section  4  of  DP  Act,
      imprisonment for a period of 6  months  was  awarded  and  a  fine  of
      Rs.10,000/- was imposed, in default, to  undergo  imprisonment  for  3
      months.  However, all the sentences were directed to run concurrently.


      2.    Facts and circumstances giving rise to this appeal are that:


      A.    The appellant got married  to  one  Shanthi  on  16.9.1994.  The
      marriage  was  negotiated  by  their  parents  at  the  house  of  one
      Jayasingh. The parents of Shanthi gave 7 to 8 gold ornaments including
      a neck chain and a ring to the appellant in the marriage.   After  the
      marriage, the appellant and Shanthi were residing at  the  appellant’s
      house bearing no.93,  2nd  Cross,  Basaveshwara  Nagar,  Magadi  Road,
      Bangalore.  It was only at  a  distance  of  one  kilometre  from  her
      parents’ house.  It is alleged that Shanthi  was  ill-treated  by  the
      appellant and also physically and mentally  tortured,  demanding  more
      dowry.
      B.    On 14.12.1994, the appellant  quarrelled  with  Shanthi  on  the
      ground that she had taken Rs.50/- from his shirt  pocket  without  his
      consent.  Shanthi committed suicide by pouring kerosene   and  setting
      herself ablaze.   She  was  taken  to  Victoria  Hospital,  Bangalore,
      however, she died at about 7 p.m. on the same day.  As it was  a  case
      of unnatural death, the post-mortem was conducted on the dead body  of
      Shanthi on 15.12.1994  and  in  the  opinion  of  Dr.  B.R.S.  Kashyap
      (PW.17), the cause of death was shock as a result of burns  sustained.
      About 95% ante-mortem burns were noticed.


      C.    Sundaresh (PW.1), father of  deceased Shanthi lodged a complaint
      on 16.12.1994 alleging that the  appellant  was  responsible  for  the
      death of  his  daughter  Shanthi  and  in  view  thereof,  the  Police
      registered an FIR in case No.773 of 1994 under Sections 498A and  304B
      IPC.  The appellant was arrested  on  17.12.1994.   The  investigation
      commenced and charge-sheet was filed under Sections 498A, 304B IPC and
      3, 4 and 6 of DP Act and the matter was committed to Sessions.


      D.    During the trial, 17 witnesses were examined by the prosecution.
       The star witnesses were Sundaresh (PW.1), father of deceased Shanthi,
      Manimaran (PW.2), brother of deceased Shanthi,  and  Sakkubai  (PW.6),
      mother of deceased.  In addition thereto,  the  other  witnesses  were
      Smt. M. Sarala Somaiah, (PW.15), I.O., Dr. B.R.S. Kashyap (PW.17)  who
      conducted the post-mortem examination.  The appellant was examined  at
      the verge of conclusion of trial under Section  313  of  the  Code  of
      Criminal Procedure, 1973 (hereinafter referred to  as  ‘Cr.P.C.’)  and
      vide judgment and order dated 8.6.2000, the appellant was acquitted of
      all the charges.


      E.    Aggrieved, the State preferred an appeal before the  High  Court
      which  has  been  allowed  vide  impugned  judgment  and  order  dated
      6.6.2007.
            Hence, this appeal.


      3.    Mr. Rohat Bansal, learned counsel appearing  for  the  appellant
      has submitted that the High Court failed to appreciate the judgment of
      the Trial Court in the correct perspective  and  interfered  with  the
      judgment  and  order  of  acquittal  passed  by  the  Trial  Court  in
      contravention of the parameters laid down by  this  Court.  There  had
      been material contradictions in the statements of PWs.1, 2, 6  and  7.
      Therefore, the Trial Court had rightly passed the order of  acquittal.
      The FIR itself  was  lodged  on  16.12.1994  though  Shanthi  died  on
      14.12.1994.  The question  of  dowry  demand  would  not  arise.   The
      statement made by Sarasa, sister of deceased before her family members
      was accepted by the High Court without realising that Sarasa  was  not
      examined by the prosecution.  The High Court failed to appreciate that
      when two views are possible, the view beneficial to the  accused  must
      be accepted. Therefore, the appeal deserves to be allowed.


      4.    Per contra, Ms. Anitha Shenoy, learned counsel for the State has
      vehemently opposed the appeal contending that Shanthi, a 20  year  old
      girl died within 3  months  of  her  marriage  in  the  house  of  the
      appellant.  Therefore, the incident was within the  special  knowledge
      of the appellant and he failed to explain how Shanthi had  died.   The
      appellant doubted the  fidelity  of  Shanthi  alleging  that  she  had
      developed illicit  relations  with  Raju,  a  friend  of  her  brother
      Manimaran (PW.2) and got pregnant before their marriage and   that  is
      why she had committed suicide.  Though the medical report specifically
      revealed that Shanthi was not pregnant, the  doubt  harboured  in  the
      mind of the appellant would itself a  ground  for  torturing  Shanthi,
      which had driven her to commit suicide. Law is well  settled  that  in
      case the findings recorded by the Trial Court are perverse, the  order
      of acquittal can be interfered by the Appellate Court.   Thus, in view
      of the above, no interference is called for.  The appeal  lacks  merit
      and is accordingly dismissed.


      5.    We have considered the rival submissions made by learned counsel
      for the parties and perused the record.


      6.    The case of the prosecution had been that Shanthi was treated in
      a hostile and cruel manner by the appellant who  asked  her  to  bring
      additional gold articles which drove her to commit  suicide.  She  had
      also been assaulted by the accused/appellant on  14.2.1994  suspecting
      that she had taken Rs.50/- from his pocket without  his  consent.  The
      undisputed facts remain that Shanthi was residing at  1  Km.  distance
      from her parents’ house and she had been  visiting  the  said   family
      quite often and died within a period of three months of  her  marriage
      as she suffered from 95% burn injuries.


      7.    Sundaresh (PW.1), father of the deceased deposed that about  one
      month earlier to her marriage, the marriage talks  were  held  at  the
      house of Jayasingh,  a  relative  of  the  appellant-accused  and  his
      parents had demanded 10 sovereign gold ornaments as  dowry.  He  could
      give only some lesser gold ornaments  then  what  had  been  demanded.
      That after one month of marriage, when Shanthi, deceased, had come  to
      his house and told him that she was beaten by her husband and asked to
      bring the balance 4 sovereign gold ornaments from her parents.


      8.    Manimaran (PW.2), brother of the deceased, deposed that about  6
      months prior to  the  marriage,  talks  were  held  at  the  house  of
      Jayasingh and his parents had demanded 10  sovereign  gold  ornaments.
      Gold necklace, jumuki, gold ring and silver leg chain  were  given  in
      the marriage alongwith other articles like wrist  watch,  clothes  and
      almirah etc.  About 15-20 days prior to the  death  of  Shanthi,  some
      neighbours had informed his family that there were always quarrels and
      galata between the appellant and his sister Shanthi  in  their  house.
      His other sister Sarasa,  who  had   visited  the  house  of  Shanthi-
      deceased,  told him that her husband was often  quarrelling  with  her
      saying that the dowry gold articles given at the time of marriage were
      not sufficient and the same were of less quantity.


      9.    Sakkubai (PW.6), mother of the deceased, deposed that talks  for
      marriage took place six months prior to the marriage at the  house  of
      Jayasingh and appellant’s parents and uncles had demanded 10 sovereign
      gold ornaments but they expressed  their  ability  to  give  only  7-8
      sovereign gold ornaments.   She  corroborated  the  version  of  other
      witnesses about the quarrels and  galata  between  the  appellant  and
      Shanthi, deceased. That after her marriage  Shanthi  did  not  have  a
      peaceful married life and it had been revealed by Shanthi  herself  to
      the witness that quarrels used to take place frequently between  them.
      Shanthi, deceased, had visited her parents’ house 7-8 times.


      10.   Hamsaveni (PW.5) deposed that talks for marriage took  place  at
      the house of Jayasingh about 1-1/2 months earlier to the marriage  but
      she did not depose about the demand of gold ornaments.


      11.    Bhuvaneshwari  (PW.7)  who  was  tenant  of  Sundaresh  (PW.1),
      deposed that when Shanthi visited her parents’ house, she had told her
      that quarrels and galata used to take place between  Shanthi  and  her
      husband as he had been demanding gold ring etc.


      12.   The aforesaid evidence reveals the following facts:
        I) The talk of marriage was held  at  the  house  of  Jayasingh,  a
           relative of the appellant/accused.
       II) The version of the aforesaid witnesses in respect  of  the  time
           when the talks took  place  varied  between  one  month  to  six
           months.
      III) The demand of 10 sovereign gold ornaments by the appellant  from
           the parents  of  deceased  Shanthi  had  been  revealed  in  the
           depositions of Sundaresh (PW.1), Manimaran (PW.2)  and  Sakkubai
           (PW.6).  The deposition of Hamsaveni (PW.5) in  regard  to  such
           demand is silent.
       IV) In respect of cruelty, Sundaresh (PW.1) deposed that he got this
           information from Shanthi, deceased  herself,  though,  Manimaran
           (PW.2) deposed that he came to know about  it  from  his  sister
           Sarasa.  Sakkubai (PW.6) and Bhuvaneshwari (PW.7)  deposed  that
           regarding the  demand  of  dowry  and  cruelty,  they  had  been
           informed by Shanthi, deceased.


      13.   The Trial Court appreciated the  aforesaid  evidence  and  found
      that the time with regard  to  the  negotiations  of  marriage  varied
      between one month and  six  months  prior  to  marriage.   There  were
      contradictions, in this respect in the statements of  witnesses.   The
      demand of quantity of gold varied  from  7-10  sovereign  as  per  the
      version given by the witnesses.  Sakkubai (PW.6) has also  deposed  in
      respect of the demand made by the  uncles  of  the  accused  and  such
      version has not been given by Sundaresh (PW.1) and  Manimaran  (PW.2).
      Different versions  had  been  given  in  respect  of  description  of
      articles of gold ornaments by Sundaresh (PW.1), Manimaran (PW.2)., and
      Sakkubai (PW.6), i.e., as to whether it was a necklace,  Jumuki,  ring
      or silver leg chain.  Sundaresh (PW.1) did not mention the fact  while
      lodging the FIR that negotiation of marriage took place at  the  house
      of Jayasingh but he had specifically mentioned therein that there  was
      a demand of 8 to 10 sovereign gold.
           In view of aforesaid findings,  the  trial  court  came  to  the
      conclusion  that  there  had  been  material  contradictions  in   the
      statements of the witnesses on material issues and therefore the  same
      could not be relied upon. Hence, the court accorded acquittal.

      14.   The High Court reversed the findings of fact observing that  the
      same  were  perverse  and  there  were  no   material   contradictions
      whatsoever  as the material aspects of the case had been whether there
      was a demand of gold articles at the time of negotiations of  marriage
      and whether subsequent to marriage  Shanthi  was  ill-treated  by  the
      appellant.
      15.    It  is  a  settled  legal  proposition  that   in   exceptional
      circumstances, the appellate court, for compelling reasons, should not
      hesitate to reverse a judgment of acquittal passed by the court below,
      if the findings so recorded  by  the  court  below  are  found  to  be
      perverse, i.e. if the conclusions arrived at by the  court  below  are
      contrary to the evidence on record, or if the court’s entire  approach
      with respect to dealing with the evidence  is  found  to  be  patently
      illegal, leading to the miscarriage of justice, or if its judgment  is
      unreasonable and is based on an erroneous understanding of the law and
      of the facts of the case. While doing so,  the  appellate  court  must
      bear in mind the presumption of innocence in favour  of  the  accused,
      and  also  that  an  acquittal  by  the  court  below  bolsters   such
      presumption of innocence.


      16.   The time when the talks of marriage  were  held  and  the  place
      where the negotiations took place are totally  irrelevant.   More  so,
      the marriage took  place  in  September  1994,  incident  occurred  on
      14.12.1994 and evidence of the witnesses was recorded in  August  1999
      i.e. after 5 years of the date of  marriage.   Thus,  it  may  not  be
      possible for the witnesses to remember dates etc. exactly  at  such  a
      belated stage. The quantity of gold demanded by the accused  side  may
      vary as per the versions of the prosecution witnesses but  the  demand
      was there which is the most material issue to be examined in the case.
       Further, it is also immaterial  as  to  whether  the  uncles  of  the
      accused also joined  negotiations in this regard as stated by Sakkubai
      (PW.6).  In the FIR, if the issue of demand had been mentioned. It may
      not be fatal if it had not been mentioned  therein  that  negotiations
      took place at the house of Jayasingh for the reason that the place  of
      negotiation is totally immaterial as it has no relevance to  determine
      the issue of demand. If the  description  of  ornaments  varied  to  a
      limited extent in  the  versions  of  the  prosecution  witnesses,  it
      remains of no consequence for the reason that people may not  remember
      exactly what had been given.


      17.   Similarly, in respect of the issue of cruelty, it could  not  be
      held to be any contradiction if Sundaresh (PW.1) and  Sakkubai  (PW.6)
      deposed that Shanthi, deceased herself told them and Manimaran  (PW.2)
      deposed that she was informed by his other sister  Sarasa.      We  do
      not see any contradiction, forget material contradictions on the basis
      of which the Trial Court had granted acquittal.


      18.   It is well settled legal proposition that while appreciating the
      evidence, the  court  has  to  take  into  consideration  
whether  the
      contradictions/omissions were of such magnitude so  as  to  materially
      affect   the    trial.    
Minor    contradictions,    inconsistencies,
      embellishments or improvements in relation to trivial  matters,  which
      do not effect the core of the case of the  prosecution,  must  not  be
      made a ground for rejection of evidence in  its  entirety.  
The  trial
      court, after going through the entire evidence available, must form an
      opinion about the credibility of  the  witnesses,  and  the  appellate
      court in the normal course  of  action,  would  not  be  justified  in
      reviewing the same, without providing justifiable  reasons  for  doing
      so. 
Where the  omission(s)  amount  to  a  contradiction,  creating  a
      serious doubt regarding the truthfulness of a witness, and  the  other
      witnesses also make material improvements before the court in order to
      make the evidence acceptable, it would not be safe to rely  upon  such
      evidence.  
The discrepancies in the evidence of eyewitnesses, if found
      not to be minor in nature,  may  be  a  ground  for  disbelieving  and
      discrediting their evidence.
 In such circumstances, the witnesses  may
      not inspire confidence and  if  their  evidence  is  found  to  be  in
      conflict and contradiction with other evidence  available  or  with  a
      statement that has already been recorded, then  in  such  a  case,  it
      cannot be held  that  the  prosecution  has  proved  its  case  beyond
      reasonable doubt.


      19.   The  defence  version  has  been  that  Shanthi,  deceased,  had
      developed illicit relations with one  Raju,  a  close  friend  of  her
      brother Manimaran (PW.2) and was pregnant at  the  time  of  marriage.
      The Trial Court accepted this version in spite of the  fact  that  the
      medical evidence was otherwise.
Dr. B.R.S. Kashyap  (PW.17)  mentioned
      in the post-mortem  report  (Ex.P-12)  that  the  uterus  was  intact.
      Subsequently, an explanation was specifically sought on 2.2.1995 as to
      whether Shanthi was pregnant at the time of death. Dr. Kashyap (PW.17)
      opined  that  she  was  not  pregnant  at  the  time  of   post-mortem
      examination.  Dr. Kashyap (PW.17) denied the suggestion  that  he  had
      issued report (Ex.P-14) in  collusion  with  the  complainant  to  the
      effect that she was not pregnant.


      20.   The Trial Court placed reliance on the medical history (Ex.P-10)
      mentioned in the Accident Register of the hospital that Shanthi had  3 months pregnancy.  
We have examined the original documents also, there
      is nothing on record to show as  at  whose  behest  remarks  had  been recorded therein.
           Thus, the finding of the Trial Court about pregnancy of  Shanthi
      recorded by the Trial Court is not worth acceptance.


      21.   In the instant case, we have explained hereinabove that none  of
      the contradictions found by the  trial  court  could  be  labelled  as
      major/material contradictions.  Therefore, the finding  of  the  trial
      court to the extent that there  was  material  contradiction,  is  not
      worth acceptance.


      22.   The appellant-accused denied all the questions put to him in his
      examination  under  Section  313  Cr.P.C.  and  did  not  furnish  any
      explanation whatsoever to any question.  He did not give  any  version
      about the incident, rather  pleaded  a  false  defence  that  Shanthi,
      deceased, had developed illicit relationship with Raju,  a  friend  of
      her brother Manimaran, (PW.2) and was  pregnant  before  marriage.
To
      question no. 32, as to whether he wanted to say  anything,  his  reply
      was only `No’.


      23.   It is obligatory on the part of the accused while being examined
      under Section 313 Cr.P.C., to furnish some explanation with respect to
      the incriminating circumstances associated with  him,  and  the  Court
      must take note of such explanation even in a  case  of  circumstantial
      evidence in order to decide whether or not the chain of  circumstances
      is  complete.   When  the  attention  of  the  accused  is  drawn   to
      circumstances that inculpate him in relation to the commission of  the
      crime, and he fails to offer an appropriate explanation,  or  gives  a
      false answer with respect to the same, the said act may be counted  as
      providing a missing link for completing the  chain  of  circumstances.
      (Vide: Munish Mabar v State of Haryana, AIR 2013 SC 912).


      24.   This Court in  Rohtash Kumar v. State of Haryana, JT 2013 (8) SC
      181 held as under:
           “Undoubtedly, the prosecution  has  to  prove  its  case  beyond
           reasonable doubt. However, in certain circumstances, the accused
           has  to  furnish   some   explanation   to   the   incriminating
           circumstances, which has come in evidence, put to him.  A  false
           explanation may be counted  as  providing  a  missing  link  for
           completing       a        chain        of        circumstances”.
           (Emphasis added)




      25.   The prosecution successfully proved  its  case  and,  therefore,
      provisions of Section 113 of the Evidence Act 1872 come into play. The
      appellant/accused did not make any attempt, whatsoever, to  rebut  the
      said presumption contained therein. More so, Shanthi,  deceased,  died
      in the house of the appellant.  He did not disclose as  where  he  had
      been  at  the  time  of  incident.   In  such  a  fact-situation,  the
      provisions of Section 106 of Evidence Act may also be made  applicable
      as the appellant/accused had special knowledge regarding  such  facts,
      though he failed to furnish any  explanation  thus,  the  court  could
      draw an adverse inference against him.


      26.   In view of the above, the findings recorded by the  Trial  Court
      on each issue had  been  perverse  and  the  High  Court  has  rightly
      reversed the said findings.   The  conduct  of  the  appellant/accused
      during the trial also disentitled him of  any  indulgence  whatsoever.
      The appeal lacks merit, and is, accordingly dismissed.  The appellant-
      accused is on bail. His bail bonds stand cancelled. He must  surrender
      within a period of  four  weeks  from  today  failing  which  the  III
      Additional Sessions Judge, Bangalore City, CCH No.25 shall take him in
      custody to serve out the remaining sentence. A copy of  the  order  be
      sent to the learned Additional  Sessions  Judge  for  information  and
      compliance.
                                       ….………………..........J.            (DR.
                                       B.S. CHAUHAN)





      …...................................J.
                                                              (S.A. BOBDE)
      NEW DELHI;
      August 19, 2013

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17

Land Acquisition Act = When the land is in developed area , deduction of 10 % is appropriate but the deduction of 1/3rd in market value is harsh =deduction of 1/3rd value of the land would be very harsh on the appellants because the appellants would be getting substantially less compensation on account of the said deduction. It was also submitted that the High Court had taken note of the fact that the land in question was very much within the developed area. If the land was within the developed area, the High Court should not have deducted 1/3rd of the value of the land in question.= Deduction to the extent of 1/3rd of the value of the land is definitely harsh even as per the observations made by the High Court as the land in question is very much in the developed area. The area has been developed by the HUDA and therefore, the deduction of 1/3rd of the value of the land is not justified. Upon considering all relevant facts, in our opinion, it would be absolutely just if 10% value of the land is deducted instead of 1/3rd because the land is forming part of a well developed area.= The market value of the land in question, as determined by the High Court, is Rs. 11.15 lacs per acre and instead of taking 1/3rd, we direct that 10% of the said value shall be deducted. The claimants shall be entitled to other statutory benefits like solatium, interest etc. on the enhanced compensation.

                             published in  http://judis.nic.in/supremecourt/imgst.aspx?filename=40661                 
         NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NO.    6958   OF 2013
                 (Arising out of SLP (C) No. 24357 of 2010)




Indraj Singh (Dead)                                .....Appellants

through LRs. & Ors.

                                Versus

State of Haryana & Anr.                              …..Respondents

                                         With

                     CIVIL APPEAL NO.   6959    OF 2013
                 (Arising out of SLP (C) No. 1025 of 2011),

                      CIVIL APPEAL NO.   6960  OF 2013
                  (Arising out of SLP (C) No. 1028 of 2011)

                                      &

                      CIVIL APPEAL NO.   6961  OF 2013
                 (Arising out of SLP (C) No. 23257 of 2013)


                               J U D G M E N T


1 ANIL R. DAVE, J.




1.    Delay condoned.


2.    Leave granted in all the  special leave petitions.


3.    Being aggrieved by the judgment dated 6th  November,  2009,  delivered
in Regular First Appeal No. 950 of 1996 and other  First  Appeals  delivered
by the High Court of Punjab & Haryana  at  Chandigarh,  these  appeals  have
been filed by the persons whose lands had been acquired for the  purpose  of
construction of a sector road under the Bahadurgarh Scheme.  The  appellants
are challenging the judgment on the ground that the amount  of  compensation
awarded to them is much lesser than what should have been awarded to them.


4.    For the purpose of construction of the road,  approximately  7  bighas
land was to be acquired and for the  said  purpose,  necessary  Notification
under the  provision  of  Section  4  of  the  Land  Acquisition  Act,  1894
(hereinafter referred to as  “the  Act”)  read  with  Section  17  had  been
published on  8th April, 1991, as the land was required immediately.


5.    The land which was acquired for the purpose of   construction  of  the
road was  Nehri (irrigated) as well as gair mumkin (waste  land).  The  Land
Acquisition Collector, by  virtue  of  his  award  dated  9th  March,  1992,
awarded compensation at the rate of Rs.3,00,000/-  per  acre  for  irrigated
land whereas Rs.1.5 lac per acre for gair mumkin type of land.  Compensation
was also awarded for  super-structures  and  trees  standing  on  the  land.
Solatium and other statutory benefits were also given to the appellants.


6.    Being aggrieved by the award, the  appellants  had  made  a  Reference
under Section  18  of  the  Act.  After  hearing  the  learned  counsel  and
considering the evidence adduced before the court, the  District  Court  had
dismissed the Reference as the Court was of the view  that  the  sale  deeds
relied upon by the appellants were not comparable and  therefore,  the  land
transactions  referred  to  by  the  appellants  could  not  help  them  for
enhancing the amount of compensation awarded to them.


7.    Being aggrieved by the dismissal of the Reference by  an  order  dated
8th December, 1995, the appellants along with other land  owners  had  filed
First Appeals before the High Court and as all the lands had  been  acquired
under a single notification under Section 4 read  with  Section  17  of  the
Act, the High Court had heard all the appeals together and had  decided  the
appeals on the basis of the main appeal decided by it.


8.    After hearing the  concerned  counsel  and  considering  the  evidence
which had been adduced before the Reference Court, the  High  Court  allowed
the appeals by awarding  Rs.  11,15,098/-  per  acre  in  respect  of  both,
irrigated as well as waste land, observing that both lands would  fetch  the
same price due to its residential and commercial potential.


9.    The High Court was of the view that the land in question was  near  to
the  land  abutting  two  main  roads.  The  High  Court  also   took   into
consideration  the  rapid  development  in  the  vicinity    and  therefore,
increased  the  value  of  the  land  in  question  after  considering   the
principles  on  which  lands  are  valued  for  the  purpose   of   awarding
compensation under the Act.


10.   The High Court also decided to decrease  the  value  of  the  land  by
1/3rd   of its value as the land in question was little away from  the  main
road.


11.   The submissions made on behalf of the appellants were  to  the  effect
that deduction of 1/3rd value of  the  land  would  be  very  harsh  on  the
appellants because  the  appellants  would  be  getting  substantially  less
compensation on account of the said deduction. It was  also  submitted  that
the High Court had taken note of the fact that  the  land  in  question  was
very much within the developed area. If the land was  within  the  developed
area, the High Court should not have deducted 1/3rd  of  the  value  of  the
land in question.


12.   The learned Additional Solicitor General appearing for the  State  had
tried to support the judgment by submitting that the deduction of 1/3rd   of
the  value of the land was just and proper as observed by the High Court.


13.   Upon hearing the learned counsel and  upon  perusal  of  the  impugned
judgment and relevant records, we  are  of  the  view  that  the  appellants
should have been awarded more  compensation.  Deduction  to  the  extent  of
1/3rd of the value  of  the  land  is  definitely  harsh  even  as  per  the
observations made by the High Court as the land in question is very much  in
the developed area. The area has been developed by the HUDA  and  therefore,
the deduction of 1/3rd of the value of the land is not justified.


14.   Upon considering all relevant facts,  in  our  opinion,  it  would  be absolutely just if 10% value of  the  land  is  deducted  instead  of  1/3rd because the land is forming part of a well developed area.


15.   The High Court, after deduction of 1/3rd of the amount  of  the  value
has awarded Rs.7,43,000/- per acre for  irrigated  and  non-irrigated  land.
The said value is after deduction of 1/3rd amount of total valuation of  the
land. The High Court has, thus, in fact, determined the market value of  the
land at Rs.11,15,000/- per acre  and  after  deducting  1/3rd  of  the  said
amount, it has awarded Rs. 7,43,000/-  per  acre,  after  rounding  off  the
figure.





16.   The market value of the land in question, as determined  by  the  High
Court, is Rs. 11.15 lacs per acre and instead of  taking  1/3rd,  we  direct
that 10% of the said  value  shall  be  deducted. 
 The  claimants  shall  be
entitled to other statutory benefits like solatium,  interest  etc.  on  the
enhanced compensation.


17.   In view of the above facts, we modify the impugned judgment and  allow
the appeals to the above extent with no order as to costs.





                                    ………………................................J.

                                                              (ANIL R. DAVE)

                                       ….…….................................
                                                                ..........J.

                                                               (DIPAK MISRA)

New Delhi
August  19,  2013










-----------------------
6

No medical negligence - complainant died - Lrs not paid any attention - expert doctor died - = After administration of the above injection, cold blood was transfused in flagrant violation of the basic medical norm or practice and within 2/3 minutes of pushing the injection this cold blood transfusion instantly had a cascading effect on his wife and she developed convulsion-condition. According to the complainant on 15.02.97, the patient developed restlessness, insomania, severe pains all over her body and also breathing trouble. Complainant alleged that no care was taken by the Staff Nurse or the doctor and when on 16.02.97 he went to the Hospital his wife was groaning and crying. Complainant further alleged that on 16.2.97, the Duty Medical Officer without consulting Dr. R.N. Duttainstructed the nurse to inject two injections namely Fortwin I vial and Calmpose I vial to the Refractory Anemia patient in total disregard of all medical norms and ultimately his wife expired.= A perusal of the impugned order shows that the State Commission, while allowing the complaint, has placed substantial reliance upon the expert opinion of Dr. S.K. DuttaChaoudhary, produced on behalf of the Complainant. The Commission has observed that:- “In paragraphs 9,10,11 of his Affidavit (page 92 & 93 of the Paper Book) this expert doctor has opined that a person suffering from ailment or having low blood pressure on poor heart condition is never administered two medicines namely injection Calmpose and injection Fortwin and according to his opinion the Cardiac failure as recorded in the Death Certificate of the patient was directly due to the administration of the said two medicines in such a physical condition of the patient as has been already described above. The doctor has further stated that supporting treatment by way of Oxygen and Saline could have saved her. With this opinion of expert is added the circumstances that there is no record forthcoming from the O.Ps to show that the blood pressure or pulse rate of the patient was ever checked by Dr.Halder during his period of crisis before the fatal injection was administered. It is also on record that this Dr. Halder who was In-Charge did not requisition any Oxygen cylinder or mask or saline to save the life of the patient.” 4. However, during the course of hearing of this appeal, it was observed that the above medial expert examined on behalf of the Complainant before the State Commission had died before the OPs had any opportunity to cross examine him. It was therefore, decided to refer the matter to the All India Institute Medical Sciences, New Delhi for opinion. Accordingly, a four member Medical Board was constituted by the Medical Superintendent, AIIMS. Its report has been received and perused. = In another significant development during the hearing of this appeal, the Complainant Shri N.C. Majumdar passed away. The application to bring the LRs on record was allowed on 26.7.2012. However, notices sent to the LRs on 27.4.2011, 14.9.2011, 01.10.2012 and on 14.5.2013 have not yielded any results. They have remained unclaimed. It is learnt from the Registry that this amount was not withdrawn by the respondent/Complainant and is still available as deposit in the name of the Registrar of this Commission.- In the reference made by this Commission to the AIIMS, specific opinion had been sought on four points. The expert report received is directly with reference to those four points. They are listed below:- “Question (i). Whether the reaction/convulsion which the patient developed immediately after transfusion of blood on 13.02.97 is attributable to the transfusion of cold blood without bringing it to the level of normal human body temperature? Answer: There is no evidence of any reaction/convulsion on 13.02.1997 after the blood transfusion as per given medical record. Question (ii).Whether the reactions/convulsions which the patient developed after transfusion of blood on 15.02.97, were managed properly? Answer: There is no record of any convulsion on 15.02.1997. Patient had rigors (shivering) on 15.02.1997, which was managed accordingly. Question (iii). Whether the administration of injections, Calmpose and Fortwin on 16.02.97 was contra-indicative keeping in view the health condition, including the cardiac condition, of the patient ? Answer: Medical records do not mention any details of patient cardiac conditions. According to medical records inj. Fortwin & inj. Calmpose were administered intramuscularly (I/M) due to restlessness and pain. However, the reasons of restlessness and pain is difficult to assess from the medical record. Question (iv) Whether the death of the deceased on 16.02.97 is directly or indirectly attributable to the said complications which followed after blood transfusion on 13.02.97 and after administration of injections on 16.02.97. Answer: It seems unlikely that the blood transfusion on 13.02.1997 resulting in the event of death on 16.02.1997. It also seems unlikely that intramuscular (I/M) administration of Inj. Fortwin and Inj. Calmpose would have caused the cardio-respiratory arrest. Her primary condition of refractory anaemia is also not recorded properly in the medical recortds.” 7. The complaint petition before the State Commission itself accepts that the deceased was suffering from the condition of ‘refractive anaemia’. As per the medical lexicon, it is a condition of unresponsiveness to treatment. Considering this in the light of the opinion categorically expressed in the report of the AIIMS, the finding of State Commission that it was a case of gross negligence cannot be sustained. 8. Consequently, the appeal of Mission of Mercy Hospital/OP-1 before the State Commission is allowed and the order of the West Bengal State Consumer Disputes RedressalCommission in Consumer Complaint No.339/0/1997 is set aside, qua the appellant. The deposit of Rs.1 lakh made by the Appellant together with the accrued interest and the statutory amount of Rs.35,000/- are directed to be released in favour of the Appellant.

published in http://164.100.72.12/ncdrcrep/judgement/00130816122903619FA56506%20.htm

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

FIRST APPEAL NO. 565 OF 2006

(Against the order dated 06.06.2006 in S.C.Case No.339/O/1997 of the State Commission, West Bengal)

                                                 

The Mission of Mercy Hospital

& Research Centre,

125/1, Park Street, Town of

Calcutta, Calcutta-700017                                                                                                                                               …..Appellant

Versus

1. Shri N.C.Majumder

S/o Late Surendra Kumar Majumder

Residing at 89, S.G.D.Road, Birati,

Post Office –Birati, Police Station-

Nimta, District 24-Parganas (North)

2. Dr. S.Majumder,

Specialist In-Charge,

Haematology Department and working

for gain as Medical Officer/Attendant

Under the Opposite Party No.1 at-

125/1, Park Street, Kolkata-700017

3. Dr. D.Halder, working for gain as

Medical Officer/Medical Attendant

Under the Opposite Party No.1 at-

125/1, Park Street, Kolkata-700017

4. SISTER-IN-CHARGE of Opposite Party

No.1, in the Haematology Department,

125/1, Park Street, Kolkata-700017                                                                                                                               .....Respondents

BEFORE:

HON’BLE MR. JUSTICE ASHOK BHAN, PRESIDENT

HON’BLE MRS. VINEETA RAI, MEMBER

HON’BLE MR. VINAY KUMAR, MEMBER       

For the Appellant             :    Mr. Amit Ray and Ms. Tatini Basu, Advocate

For the Respondents        :    NEMO

PRONOUNCED ON: 12-08-2013

                        

ORDER

PER MR. VINAY KUMAR, MEMBER

          This appeal has been filed against the order of West Bengal State Consumer Disputes Redressal Commission in Consumer Complaint 339/O/1997.  The State Commission has allowed the Complaint against OP Nos.1, 2 and 3, simultaneously dismissing it against OP No.4.  Total compensation of Rs.4 lakhs has been awarded in favour of the Complainant. Of this, Rs.3 lakhs is ordered to be paid by OP-1/ Mission of Mercy Hospital and Research Centre and Rs.50,000/- each by OP Nos.2 and 3.            

2.       The case of the Complainant before the State Commission was that his wife, late Binapani Majumder was a case of Refractory Anemia since June, 1996 and on medical advice she was admitted in the OP Hospital on 11.2.97.  
After admission she was given saline and other preventive medicines.  
On 12.2.97, Dr. R.N. Dutta advised administration of saline/blood transfusion and other medicines for malaria prevention and also injection for refractory anemia ailment. 
On 13.2.97, she was administered Hemax Injection. Methylprainisiolone (i.v.) and blood transfusion etc.  
According to the complainant, no blood is transfused to a patient in a frozen condition without warming up the blood at least uptothe patient’s body temperature.  
After administration of the above injection, cold blood was transfused in flagrant violation of the basic medical norm or practice and within 2/3 minutes of pushing the injection this cold blood transfusion instantly had a cascading effect on his wife and she developed convulsion-condition.  
According to the complainant on 15.02.97, the patient developed restlessness, insomania, severe pains all over her body and also breathing trouble.  
Complainant alleged that no care was taken by the Staff Nurse or the doctor and when on 16.02.97 he went to the Hospital his wife was groaning and crying.  

Complainant further alleged that on 16.2.97, the Duty Medical Officer without consulting  Dr. R.N. Dutta instructed the nurse to inject two injections namely Fortwin I vial and Calmpose I vial to the Refractory Anemia patient in total disregard of all medical norms and ultimately his wife expired.  
Complainant filed a consumer complaint alleging medical negligence against the OP Hospital and doctors.

3.       A perusal of the impugned order shows that the State Commission, while allowing the complaint, has placed substantial reliance upon the expert opinion of Dr. S.K. DuttaChaoudhary, produced on behalf of the Complainant. The Commission has observed that:-

“In paragraphs 9,10,11 of his Affidavit  (page 92 & 93 of the Paper Book) this expert doctor has opined that a person suffering from ailment or having low blood pressure on poor heart condition is never administered two medicines namely injection Calmpose and injection Fortwin and according to his opinion the Cardiac failure as recorded in the Death Certificate of the patient was directly due to the administration of the said two medicines in such a physical condition of the patient as has been already described above. 

 The doctor has further stated that supporting treatment by way of Oxygen and Saline could have saved her.  With this opinion of expert is added the circumstances that there is no record forthcoming from the O.Ps to show that the blood pressure or pulse rate of the patient was ever checked by Dr.Halder during his period of crisis before the fatal injection was administered.  It is also on record that this Dr. Halder who was In-Charge did not requisition any Oxygen cylinder or mask or saline to save the life of the patient.”

4.       However, during the course of hearing of this appeal, it was observed that the above medial expert examined on behalf of the Complainant before the State Commission had died before the OPs had any opportunity to cross examine him. 

 It was therefore, decided to refer the matter to the All India Institute Medical Sciences, New Delhi for opinion.  

Accordingly, a four member Medical Board was constituted by the Medical Superintendent, AIIMS.  Its report  has been received and perused.  

The record of the State Commission has also been summoned and perused. 

5.       In another significant development during the hearing of this appeal, the Complainant Shri N.C. Majumdar passed away.  The application to bring the LRs on record was allowed on 26.7.2012.  However, notices sent to the LRs on 27.4.2011, 14.9.2011, 01.10.2012 and on 14.5.2013 have not yielded  any results. They have remained unclaimed.  In between, the Commission had also directed on 3.7.2009 that the sum of Rs.1 lakh deposited by the appellant should be permitted to be withdrawn by the respondent/Complainant, subject to furnishing adequate security to the satisfaction of the Registrar of this Commission.  It is learnt from the Registry that this amount was not withdrawn by the respondent/Complainant and is still available as deposit in the name of the Registrar of this Commission.

6.       In the reference made by this Commission to the AIIMS, specific opinion had been sought on four points. The expert report received is directly with reference to those four points.  

They are listed below:-

“Question (i).  Whether the reaction/convulsion which the patient developed immediately after transfusion of blood on 13.02.97 is attributable to the transfusion of cold blood without bringing it to the level of normal human body temperature?

Answer:      There is no evidence of any reaction/convulsion on 13.02.1997 after the blood transfusion as per given medical record.

Question (ii).Whether the reactions/convulsions which the patient developed after transfusion of blood on 15.02.97, were managed properly?

Answer:      There is no record of any convulsion on 15.02.1997.  Patient had rigors (shivering) on 15.02.1997, which was managed accordingly.

Question (iii).  Whether the administration of injections, Calmpose and Fortwin on 16.02.97 was contra-indicative keeping in view the health condition, including the cardiac condition, of the patient ?

Answer:      Medical records do not mention any details of patient cardiac conditions.  According to medical records inj. Fortwin & inj. Calmpose were administered intramuscularly (I/M) due to restlessness and pain.  However, the reasons of restlessness and pain is difficult to assess from the medical record.

Question (iv) Whether the death of the deceased on 16.02.97 is directly or indirectly attributable to the said complications which followed after blood transfusion on 13.02.97 and after administration of injections on 16.02.97.

Answer:      It seems unlikely that the blood transfusion on 13.02.1997 resulting in the event of death on 16.02.1997.  

It also seems unlikely that intramuscular (I/M) administration of Inj. Fortwin and Inj. Calmpose would have caused the cardio-respiratory arrest.  

Her primary condition of refractory anaemia is also not recorded properly in the medical recortds.”  

7.       The complaint petition before the State Commission itself accepts that the deceased was suffering from the condition of ‘refractive anaemia’. 

As per the medical lexicon, it is a condition of unresponsiveness to treatment. Considering this in the light of the opinion categorically expressed in the report of the AIIMS, the finding of State Commission that it was a case of gross negligence cannot be sustained.  

8.       Consequently, the appeal of Mission of Mercy Hospital/OP-1 before the State Commission is allowed and the order of the West Bengal State Consumer Disputes Redressal Commission in Consumer Complaint No.339/0/1997 is set aside, qua the appellant.  The deposit of Rs.1 lakh made by the Appellant together with the accrued interest and the statutory amount of Rs.35,000/- are directed to be released in favour of the Appellant.

                              …..…………Sd/-….…….……

                                                        (ASHOK BHAN, J)

PRESIDENT 

                              …..…………Sd/-….…….……

                                                        (VINEETA RAI)

MEMBER  

                              …..…………Sd/-….…….……

                                                        (VINAY KUMAR)

MEMBER                 

S./-