Value of EVIDENCE at trial under Medicare Protection Acts

 Ms. Atishaya Kaushal, Advocate

(9891952134/atishayakaushal@gmail.com)

CNR No. DLNW01­000210­2012 /SC No. 35/2012/ FIR NO. 190/2011 U/s 307 IPC & Sec 3 & 4 of Delhi Medicare Service Personnel and Medicare Service Institutions (Prevention of Violence and Damage to Property) Act,2008/ STATE VERSUS ASHA BHATIA & ORS. PS. Saraswati Vihar, DECIDED BY THE COURT OF ADDITIONAL SESSION JUDGE ­ 03   NORTH­WEST: ROHINI: DELHI  0N 3rd September 2019

Facts: 

Brief facts leading to the trial of the accused of an offence under Section 307 IPC as disclosed in the Charge­ sheet was that on 14.05.2011 a call vide DD No. 35B was received at PS Saraswati Vihar that an accident case had come and injured had died, and family members of the deceased were making a nuisance. On receipt of said DD, IO/SI along with Ct. Manjeet reached Max Hospital where mother, father, brother, relatives, and friends of deceased Mohit Bhatia were using filthy language and manhandling with Hospital Staff and were throwing the equipment of the hospital. IO tried to pacify them but they did not mend. Thereafter, IO made the call at the PS for sending more police officials in the hospital. SHO and Senior Officers were informed about the incident and SHO and Senior Officers also came at the spot. Thereafter, the dead body of deceased Mohit Bhatia was sent to BSA Hospital under the supervision of Ct. Manjeet. The hospital staff was asked to get their medical examination but they refused. Dr. Ravi Shankar (PW1), Head of Max Health Care was present there and he gave written complaints against members of the family of patient Mohit Bhatia for manhandling doctors, nurses, and other staff. The gist of the complaint was to the effect that Mr. Mohit Bhatia, 26 years male S/o Mr. Vipan Bhatia was brought to Emergency (Triage) of Max Hospital, Pitampura with alleged H/o Road Traffic Accident. He was admitted under Dr. Sonal Gupta vide IP No. 50104 on the 12th of May 2011 at 10:42 pm. The patient was duly attended by the hospital staff and MLC No. 1870 was created. Since the time of admission, patient was critical and the same was communicated to the family members of the patient. On 13th May 2011, a patient's condition further deteriorated and despite all resuscitative measures he could not be revived and declared dead at 11:12 pm. When the patient was declared dead, mother of Mohit Bhatia Asha Bhatia, father Vipan Bhatia, Brother Ankit Bhatia, sister Sarika, all residents of BJ­51, West Shalimar Bagh, New Delhi, along with some other people, whose names are not known to the complainant, but they were either relative of Bhatia family or their friends, started rioting in medical ICU of the third floor, and halted ICU and hospital operations. While they were rioting some names, were heard like Nitin Bhatia, Rubble, Dipanshu, Piyush, Bhakar, Nikhil etc. They prevented the hospital staff from doing their duty of taking care of patients and jeopardized the lives of seriously ill patients. They also destroyed the hospital property of ICU and third-floor nursing stations. They assaulted duty doctor Dr. Janmeet Singh Jolly, Staff nurses Sajish Monahan and Nancy. Dr. Lalit Sharma, Attending consultant­ Anesthesia was assaulted by Smt. Asha Bhatia. She tried to strangulate Dr. Lalit with telephone wires and tore his clothes. She and other family members also assaulted Dr. Jolly and tore his shirt. Hospital staff called Police Control Room at number '100' at approximately 11:30 PM/ 12:00 midnight hours during the night intervening May 13/14, and with the help & tremendous efforts of police authorities the rampage could be stopped and the situation was brought under control.  With the personal intervention of senior police officers, with great difficulty, the formalities could be completed and the body was handed over to the police for postmortem. The due bill of Rs.18,841.37 has still not been cleared by the family.  On the basis of the complaint, a rukka was prepared and there was sent for registration of FIR which was registered under Section 3 / 4 Delhi Medical Services Personnel and Medicare Service Institutions (Prevention of Violence and Damage of Property) Act, 2008 and 307 IPC. During the investigation site plan was prepared, damaged properties i.e. CPU, wire, ECG Machine, telephone wire, torn cloth of doctor, etc. were taken into possession vide seizure memos. Medical examination of Dr. Lalit Mohan and Dr. Janmit Singh Jolly was got done from B.M Hospital, Pitampura, N. Delhi. Thereafter accused persons were arrested one by one and after completion of the investigation charge sheet was filed. Charges against all the accused persons were framed under Section 149 IPC, then under Section 323/307/149 IPC and further under Section 3 and 4 of Delhi Medicare Service Personnel and Medicare Service Institution (Prevention of Violence and Damage to Property) Act, 2008. In order to prove the charges against the accused persons prosecution had cited 16 witnesses but examined only 9 witnesses as Dr. Janmeet Singh Jolly could not be produced for his examination.  

FINDINGS: Present FIR was registered on the written complaint dt. 14.05.2011 Ex PW1/A of Dr Ravi Shankar Singh (PW1), the Head of Medical Services, Max Hospital, Pitampura. He also proved the same by admitted having made complaint and identifying his signature on the complaint. In his complaint it is mentioned that at 10:42 PM on 12.05.2011 Mr. Mohit Bhatia S/o Mr Vipan Bhatia was brought to Emergency (Triage) with history of road accident. His critical medical condition was communicated to the family members of patient. He, the patient, died on 13.05.2011 at about 11:12 PM. When patient was declared dead mother of Mohit Bhatia Asha Bhatia, father Vipan Bhatia, brother Ankit Bhatia and sister Sarika Bhatia all resident of BJ­51, West Shalimar Bagh, New Delhi, along with some other people whose names were not known to him, but they were either relative of Bhatia Family or their friends started rioting in medical ICU unit of third floor and halted ICU and hospital operation. Complainant has named by name only four accused persons i.e. Asha Bhatia, Vipan Bahtia, Ankit Bhatia and Sarika Bhatia and while they were rioting some names were heard like Nitin Bhatia, Rubble, Dipanshu, Piyush, Bhaskar, Nikhil etc. Ld. Counsels for defense has submitted that even this naming except that of father, is not possible as Dr. Ravi Shankar Singh knew none of them personally and he also admitted so in his cross­ examination. They have further argued that except the address of Bhatia family, address of none other was mentioned. How police discovered that the accused persons are the same persons who had allegedly indulged in rioting? They have further submitted none of the arrest of accused persons were made on the identification of complainant or on the identification of any of the incident witnessing person nor have they pointed out the address of the accused persons. It is also not the case of the prosecution that Bhatia family had led them to the accused Bhaskar, Harmeet Singh, Piyush Khanna, Nikhil Khanna.  Examination­ in ­chief of IO PW9 Radhey Shyam perused. He nowhere deposed how he came to know of the involvement of those accused whose name were not mentioned in the complaint Ex PW1/A. Wherefrom he got the address of the those accused persons? How they were identified before their respective arrest and how was he (IO) sure that the arrested persons were the same person who had allegedly indulged in the rampage in the Hospital, if at all rampage took place?  How police reached to accused Bhaskar Batra, Harmeet Singh, Piyush Khanna and Nikhil Khanna. Neither any of the accused from Bhatia family led the police party to these four accused nor is it the case of the prosecution that complainant or the victim or any of the eye witness took the police to these four accused persons. It is also not the case of the prosecution that these four accused after their arrest on suspicion were identified by the eye witnesses by way of TIP. Prosecution has got to establish that it is these very four persons whose names were overheard at the time of rioting.  PW1 in the court identified only Asha Bhatia, Vipan Bhatia and Sarika Bhatia and pointed out only one accused Harmeet Singh whose name he did not tell and also pointed out towards accused Bhaskar as the one who have committed the crime. As accused Harmeet and accused Bhaskar was not arrested at the instance of the complainant, victim or eye witness nor were they identified by the complainant, victim or eye witness later by way of TIP nor is it the case of prosecution that these four accused persons were identified by the Bhatia family as being involved, therefore, their identification for the first time in the court by PW1 has to be taken with caution and court must look for corroboration. In any case PW1 did not identify rest of the accused except Asha Bhatia, Vipan Bhatia, Sarika Bhatia by their name and face and Harmeet and Bhaskar by their face. PW3 was unable to identify any of the accused persons except Asha Bhatia and Nikhil. PW3 though admitted that he had stated to the police that accused Asha Bhatia, sister Sarika, father Vipan, Nitin, Rubbal, Dipanshu, Bhaskar and Nikhil started damaging the equipments installed at nursing station of the ICU but was unable to identify any of them them except Asha Bhatia and Nikhil. Admittedly accused Nikhil was not arrested at his instance nor was he identified by way of TIP. Hence, identification of accused Nikhil for the first time in the court has also got to be taken with caution and court must look for corroboration. . PW4 also did not identify any of the accused persons. PW6 Lalit Kumar also did not identify any of the accused persons present on that day in the court. PW6 Lalit Kumar even did not support the case of prosecution that any rampaging took place. Other witnesses examined by the prosecution is not witness to the incident. Therefore, prosecution has failed to prove beyond reasonable doubt that accused Harmeet, Bhaskar, Piyush Khanna and Nikhil Khanna had indulged in rioting or in beating the hospital staff, nurse etc. or damaging the hospital property and consequently accused Harmeet Singh, Bhaskar Batra, Nikhil Khanna and Piyush Khanna are acquitted of all charges for which they were tried in the present case for want of satisfactory evidence.. Now the question is whether the remaining accused persons who are members of family of the deceased Mohit Bhatia, are guilty of offences charged with. Presence of accused Asha Bhatia and Vipan Bhatia at the time of death of Mohit Bhatia is not disputed. In their statement under Section 313 CrPC, accused Sarika Bhatia, Nitin Bhatia, and Ankit Bhatia have disputed their respective presence at the hospital when Mohit Bhatia was declared dead. These three have claimed to `have arrived at next day in the morning of 14.05.2011 by which time the alleged rampage was over. It is the defense of the Bhatia family that Mohit Bhatia died due to negligence of the accused and was in fact murder by Rajat Chaudhary in collusion with doctors Dr. Lalit Mohan and Dr Jolly and in order to prevent action against the hospital and Rajat Chaudhary family members of the deceased Mohit was implicated in this false case as some of the persons had questioned the unauthorised access of Rajat Chaudhary in the ICU . Admittedly entire hospital particularly the third floor where MICU is situated, is covered under CCTV. PW­1 and PW­3 both admitted that entire area is covered under CCTV surveillance. PW­1 went on to the extent of deposing that CCTV footage was handed over to the IO. He deposed in cross­ examination that he had seen the CCTV footage before it was handed over to the police by him. PW­3 also admitted that entire hospital was under CCTV coverage. CCTV footage has not been made part of evidence in the present case.  Perusal of the charge sheet reflects that CCTV footage was neither collected nor same has been made case property. However, PW­1 the complainant specifically deposed that he had handed over CCTV footage to the IO. He also admitted that he had seen the CCTV footage before handing over the same. Investigating agency did not feel it necessary to get the spot of incident photographed if at all rampaging had taken place and the monitor, computer, CPU etc. were thrown scattered here and there by the mob. Investigation also did not bring on record the records of equipments/instruments that were installed in the ICU unit by the hospital. It is worthwhile to note herein that said record would have helped in proving the make, the serial number etc. of the devices and instruments that were installed in the ICU unit and which were allegedly damaged by the accused persons. There is nothing on record to suggest that case properties i.e. calculator make citizen CT500 Ex. PW1/P1, telephone wire Ex. PW1/P6, ECG machine, printer make HP Laser Jet 1010 Ex. PW1/P4, ventilation cassette Ex. PW1/P5, ECG machine make MCG 1200ST with wire Ex. PW1/P3 and monitor Ex. PW1/P2 were in fact installed in the ICU unit or available in the ICU unit. There is no record to suggest that these equipments/instruments/devices had been in operation till just before the incident and stopped operating after the alleged incident. No record of substitution/replacement in the ICU unit has been placed on record. The investigation in this regard is clearly lacking and there is no evidence these articles were installed at the spot of incident.

HELD:

In the absence of above noted material evidence the entire incident of rampaging/rioting/damaged to the property of the hospital gets covered in the clouds of doubt. It is not understandable why the CCTV footage and photographs of the place of incident showing scattering of equipments/devices etc. were not taken. CCTV footage would have helped in identifying the participants in rioting if at all it took place. Photographs would have helped this court in appreciating the rampaging. Hence, prosecution has failed to prove through reliable evidence and witnesses that act of rampaging/rioting/damaged to the property of hospital took place. Hence, all accused persons are acquitted of the offence under Section 3 and 4 of Delhi Medicare Services Personnel and Medicare Service Institutions (Prevention of Violence and Damaged to Property) Act, 2008. Whether the accused persons committed the offence punishable under Section 323/307/341 IPC by causing hurt to Dr. Lalit by strangulating his neck with telephone wire and causing hurt and on the person of Dr. Janmeet Singh Jolly and other staff namely Sajish Monachan and Nancy. Admittedly PW­1 had came to the spot after the alleged rioting started and he himself is not witnessed to the attack on Dr. Janmeet Singh Jolly, Dr. Lalit, Sajish Monachan and Nancy. Admittedly Dr. Janmeet Singh Jolly, Sajish Monachan and Nancy could not be produced and examined by the prosecution. Dr. Lalit Mohan Sharma PW­3 in his examination ­in ­chief deposed that on hearing that Mohit Bhatia has died all the relatives (of Mohit Bhatia) started beating the nursing staff, Dr. Jolly and him. He further deposed that Asha Bhatia present in the court pulled the wire of the telephone installed at nursing station and gave two rounds on his neck and tried to strangulate him while he was caught hold by other persons from behind whose name he did not remember but he can recognize them and thereafter he pointed out towards accused Nikhil as the one who had caught hold him from behind. He, however, in his cross ­examination by Ld. APP for the State had deposed that accused Ankit and Piyush had caught hold of him and but finally failed to recognize accused Sarika, Vipan, Nitin, Rubal, Piyush, Bhaskar and Nikhil stating that due to lapse of time he was unable to identify these accused persons as it was a mob.. His MLC was got done almost after 24 hours. His MLC is Ex. PW7/B. Perusal of MLC Ex. PW7/B shows presence of abrasion marks over neck around 3­4 cms , abrasion and redness over front of the chest around 5­6 cms and local tenderness was present. Patient Mohit Bhatia is stated to have died at 10:00 PM and when death of Mohit Bhatia was disclosed, the incident began. MLC Ex PW7/B of him was got done at about 11:00 PM on 14.05.2011 i.e. almost after 24 hours of the incident. He deposed that he had not taken any treatment on 13.05.2011 for the injuries sustained by him. He volunteered that as there was a strangulation mark on his neck which was caused by using a telephone wire for which he did not find any requirement for treatment. He further deposed that the injury sustained by him was not grievous as he was not feeling any respiratory distress.  His MLC Ex PW7/B shows his complain of pain over neck, chest and discomfort. It is not his case that such problem developed later on i.e. after 18 ­ 20 hours of the incident. Abrasion and bruises are fresh though word "Fresh" has not been used in the MLC Ex PW7/B but since presence of scab (either reddish or brown or black) has not been mentioned, therefore, abrasion and bruises are fresh which is not possible after 24 hours of the incident. Further no strangulation mark has been found in the neck of the PW3 by the doctors. Then question what was the need for MLC after 24 hours of the incident? Is it inly for the purpose of creating evidence? No explanation is offered either by PW3 Dr. Lalit Mohan Sharma or by PW9 IO Radhey Shyam. If at all medical attention to this victim was required then it should have been provided then there in the Max Hospital itself or at near by Govt Hospital in the night itself or at least in the morning. This unexplained delay and unexplained necessity in getting the MLC done after 24 hours itself cast a doubt in the prosecution case.  It has already been held herein before that prosecution has failed to prove the incident of rampaging by most cogent and reliable evidence and non collection of CCTV footage is fatal to the case of the prosecution. This CCTV footage could have exposed the alleged attack on Dr. Lalit Mohan Sharma and on other persons. Prosecution also failed to produce Dr Jasmeet Singh Jolly, Sajish Monachan and Nancy who could have either corroborated the version of Dr. Lalit Mohan Sharma. Further, it is also bothering this Court as to why Dr. Lalit Mohan himself did not make complaint about attack on him. He was having mobile phone with him as disclosed by him in his cross examination but did not call police nor did he make his own complaint.. Thus the evidence led by the prosecution contains many weakness as discussed above which cast serious doubt about the prosecution case, hence, benefit of doubt is required to be given to the accused persons and accordingly remaining accused namely Asha Bhatia, Vipan Bhatia, Sarika Bhatia, Ankit Bhatia and Nitin Bhatia are also acquitted of the charges they were tried for in the present case.  Thus in view of the above discussion and reasoning, all the accused persons are acquitted of all the charges they were tried for in the present case.

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