@JUDGMENTTAG-ORDER
R.M.S. Khandeparkar, J.@mdashHeard. This revision application arises from the judgment dated 29th June 2007 passed by the learned J.M.F.C., Panaji in Criminal Case No.42/2001/C. By the impugned judgment, the respondent Nos. 1 & 2 who were facing the trial for the offence punishable U/s.304A r/w.34 of I.P.C. have been acquitted. The impugned judgment is sought to be challenged on two grounds firstly that the testimony of the petitioner who was P.W.8 before the trial Court has not at all been considered by the trail Court and secondly that apart, from the report by the Medical Board, sufficient evidence available on record disclosing the negligence on the part of the respondent Nos. 1 & 2 in the matter of treatment to the deceased person, but the same has been totally ignored by the trial Court while granting acquittal to the said respondents. On the other hand, the respondents while challenging the locus of the petitioner to prefer the present revision application against the order of acquittal contend that the impugned judgment nowhere discloses any illegality or perversity and hence, there is no scope for the interference therein in the revisional jurisdiction.
2. At the outset, it is to be noted that the revision application has been preferred against the order of acquittal. It is settled law that in case of an order of acquittal by the trial Court, the appellate Courts are expected to be slow in interfering with such order, unless the order of acquittal discloses perversity or arbitrariness on the part of the trial Court in ordering the acquittal of the accused as also in case the findings arrived at by the trial Court are found to be contrary to the materials on record before the trial Court. Further, the question of appreciation of evidence in revisional jurisdiction does not arise. Bearing these aspects in the mind, the matter will have to be considered while dealing with the rival contentions sought to be made on behalf of the parties.
3. The petitioner was the Chairman of the Medical Board to whom the matter was referred to by the Deputy Collector and Sub-Divisional Magistrate pursuant to the death of one Mrs. Minguelina Duarte aged about 26 years. The said Minguelina expired on 22.3.2000 at Goa Medical College, Bambolim while undergoing the treatment therein. The petitioner was the Dean of the Medical College at the relevant time. The patient was admitted to G.M.C. on 2.2.2000, pursuant to being shifted from Talaulikar Nursing Home, Santa Cruz wherein she was admitted on the same day during early hours of the day. The petitioner was examined as P.W.8 in the course of the trial. Apart from the fact that the petitioner was the Chairman of the Medical Board and he was examined as P.W.8 in the course of the trial, no other ground is canvassed for preferring the revision application against the impugned judgment of acquittal of the respondent Nos. 1 & 2. It is sought to be contended on behalf of the petitioner that the petitioner being a Doctor was entrusted with the job to ascertain whether the respondent Nos. 1 & 2 had been negligent in prescribing the treatment to the said patient while the said patient was in their nursing home, prior to the admission of the patient to GMC Hospital. The petitioner is, therefore, said to be interested in the outcome of the proceedings and in that view of the matter, has locus standi to file the present petition. Even otherwise, it is sought to be contended that if the order is shown to be illegal, nothing could prevent the Court from suo motu taking notice for such illegality and to pass an appropriate order in revisional jurisdiction. On the other hand, it is sought to be contended that the present revision application is merely a counter blast to the civil proceedings initiated by the respondents for damages against the petitioner being Special Civil Suit Nos.134/2004 and 135/2004 filed in the Civil Court by the respondent Nos. 1 & 2 against the petitioner. It is further the contention that merely because the petitioner had been the Chairman of the Medical Board and/or the witness in the matter that would not entitle the petitioner to approach this Court in its revisional jurisdiction against the order of acquittal of the accused.
4. It can not be disputed that if the petitioner before the Court is able to point out that the order of acquittal of the accused has been completely illegal order or the findings arrived at by the trial Court are totally contrary to the materials on record, nothing would prevent this Court in its revisional jurisdiction to interfere in such illegal order and to issue appropriate direction in the matter. However, in the course of the argument, inspite of repeated query, the petitioner''s Advocate could not point out any illegality as such in the impugned order, apart from contending that the trial Court has failed to consider the testimony of the petitioner in proper perspective as also the voluminous evidence available on record in the form of the Medical Board''s report Exh.P.W.8/A and the documents which were placed before the Board by the Sub-Divisional Magistrate. The same having been totally ignored, the trial Court has failed to exercise its jurisdiction in the manner it was required to be exercised in the facts of the case. To substantiate the contention, a copy of the testimony of P.W.8 was made available and was extensively read over in the course of the argument.
5. The perusal of the impugned order, however, apparently discloses detail consideration of the testimony of the P.W.8 as also consideration of Exh.P.W.8/A and reasons for disbelieving the said testimony as well as the said documents.
6. The perusal of the testimony of P.W.8 discloses a clear assertion on the part of the petitioner himself about non-availability of necessary records to arrive at definite conclusion regarding the treatment which was given by the respondent Nos. 1 & 2 during the time the patient was in their Nursing Home prior to her admission in the GMC Hospital. The testimony of the P.W.8 apparently discloses that he or the Medical Board had no occasion to peruse the relevant record from the nursing home of the respondents to ascertain as to what treatment was prescribed to the patient while the patient was in their nursing home. In this circumstances, unless it was explained by the expert witness, in the case in hand, P.W.8 who is examined as expert witness as to on what basis the Court could arrive at the findings about the medical negligence on the part of the respondent Nos. 1 & 2 vis-a-vis the concerned patient, one fails to understand how the petitioner could contend that the trial Court has not considered the evidence of the petitioner in proper perspective and how could one blame the trial Court for discarding the medical report Exh.P.W.8/A. The impugned judgment on the face of it discloses yet another reason for discarding the said document namely, that it was the contention of the petitioner himself, who had prepared the said report that the said report was tampered while being made available to the Court for its consideration. In other words, on one hand, the petitioner makes grievance about non-consideration of the materials on record in proper perspective namely his testimony and the report of the Medical Board and at the same time, he himself contends that the Medical Board''s report had been tampered with and, therefore, is unbelievable and can hardly have credence for being considered as the document which can be relied upon by the Court for arriving at finding about the negligence on the part of the respondents in giving treatment to the patient. His testimony nowhere discloses any cogent material which could reveal medical negligence on the part of the respondent Nos. 1 & 2 vis-a-vis the concerned patient. In such circumstances, by no stretch of imagination it can be said that the impugned judgment discloses any illegality, which could be sufficient for the interference therein by this Court in revisional jurisdiction. Being so, the respondents are justified in contending that the petitioner has no locus standi to seek interference of this Court in the impugned judgment of acquittal of the respondent Nos. 1 & 2. Besides, it is apparent that the present proceeding by the petitioner is obviously by way of retaliation to the civil proceedings initiated against the petitioner for damages by the respondent Nos. 1 & 2.
7. As already stated above, the testimony of P.W.8, the petitioner, nowhere discloses or establishes any medical negligence on the part of the respondent Nos. 1 & 2 nor the medical report Exh.PW8/A lends any support to the wild allegations on the part of the petitioner about the medical negligence on the part of the respondent Nos. 1 & 2 in the course of the treatment to the said patient. Normally, knowing well the limitations of revisional jurisdiction I would have restrained myself from analysing the evidence, however, it is the petitioner who himself having brought to my notice the said evidence and the manner in which the contentions are raised, I am left with no alternative than to refer to the said evidence in the matter.
8. It is sought to be contended on behalf of the respondent that the allegations regarding the tampering with the medical report was merely an afterthought and was made knowing well that the report nowhere establishes the alleged medical negligence on the part of the respondent Nos. 1 & 2. It is sought to be contended that the allegations relating to tampering with the report was made for the first time in the year 2006 even though the petitioner had with him the copy of the said report as long back in the year 2003 when the earlier revision application was filed by the petitioner to which the copy of the said report was annexed as Exh.H by the petitioner himself. At no point of time, prior to 2006 and before recording of the testimony of P.W.8, the allegation was made regarding tampering of the said report. In other words, according to the respondent, the allegation regarding the tampering of the said report has been made solely with the intention to enable the petitioner to rely upon his own testimony which is not only contrary to the said report, but a clear case of total improvement over the said report. At this stage, suffice to observe that, the trial Court in the impugned judgment has given cogent reasons for discarding the said report. Even otherwise, the said report on the face of it discloses that the findings therein were sought to be arrived at without being bothered to get the necessary detail records pertaining to the treatment which might have been administered to the concerned patient while the patient was in the private Nursing Home of the respondent Nos. 1 & 2. Plain reading of the report discloses as to how superfluous and casual approach was adopted by the petitioner and the Doctors of the Board while arriving at the findings relating to the investigation entrusted to them inspite of knowing well that it related to the death of the patient in the GMC Hospital and they were required to ascertain whether there was medical negligence on the part of the Doctors who had treated the patient before the patient was admitted to GMC Hospital. It is worth noting that the patient was admitted to G.M.C. 49 days prior to her death. The relevant observations of the Board read thus :
The enclosed statement from Dr.Vijay Talaulikar dated 29.3.2000, the attended Gynaecologist, and other enclosed documents do not mention the operative details undertaken......... it is also not known whether the operative procedure could be completed and if so what are the findings.
It is learnt that the Cardiac Arrest had occurred soon the surgical procedure started at around 8.15 a.m. whereas the patient shifted to G.M.C. at around 3.30 p.m. i.e. after 6-7 hours of the cardiac arrest. It is not known what specific purpose was served by transferring the case to G.M.C. so late after brain damage.........
(emphasis supplied )
It is also pertinent to note at this stage that the respondents had made detailed written submissions to the Board on 29.3.2000. However, nowhere further details, if required, in relation to the explanation submitted by the respondents were ever asked for from them or any one of them, in writing or orally. I am informed across the bar that the respondents were never summoned by the Board for being heard in the matter. As already observed above, the testimony of P.W.8 expert witness discloses that the records which were made available to the Board by the Sub-Divisional Magistrate, were not sufficient to know details regarding the treatment which was given to the concerned patient by the respondents in the private Nursing Home before the patient was admitted to G.M.C. Hospital. Even, the report nowhere refers to the treatment which was given by the Doctors in G.M.C. immediately after the admission of the patient and before her death. Apparently, the report could not have been relied upon for arriving at any finding regarding the alleged medical negligence of the concerned Doctors and, therefore, no fault can be found with the order of the trial Court discarding such medical report.
9. For the reasons stated above, therefore, there is absolutely no case made out for the interference in the impugned judgment of acquittal of the respondent Nos. 1 & 2. Indeed, it appears to be a case wherein the petitioner has preferred present petition either by way of counter blast to civil proceeding as sought to be argued on behalf of the respondent or as for some other reason for which the petitioner seeks to pursue the criminal matter against the respondent Nos. 1 & 2. However, certainly, the records nowhere justify any such proceeding against the respondent Nos. 1 & 2. Apparently, therefore, there is some vindictiveness against the respondents disclosed on the part of the petitioner in pursuing the matter, which would justify the dismissal of the revision petition with exemplary costs. For the reasons stated above, therefore, the petition is dismissed with exemplary costs of Rs.50,000/-, to be paid to each of the respondent Nos. 1 & 2 within a period of four weeks. Order accordingly.
