IN THE COURT OF DISTRICT CONSUMER DISPUTE REDRESSAL FORUM AT TUMKUR COM.NO.

85/2011

COMPLAINANT DAKSHYANI @ CHANDRAKALA

VS

OPPOSITE PARTY DUTY DOCTOR NARASIMHAIAH HOSPITAL

Objections and statement filed by opposite party:1. The complaint is not maintainable either on facts or on law. 2. The complainant has not given correct address to the Honb le court and her name is also twisted by giving false identity as to her husband name. This is purposefully to avoid future adverse effects from this false complaint. Until and unless complainant gives her correct description the complaint shall not be proceeded with. To evidence such facts the voter list available online in state election commission website is produced for kind perusal of the Honble court as Annexure-1 3. On the night between 01-05-2011 and 02-05-2011 at about 100 AM the complainant is brought by her husband to the opponent hospital is an undisputed fact. To evidence the fact the case summary and discharge record self attested copy is produced as Annexure-2. 4. It is false to say that complainant was brought with as presently alleged criminal history. As per her husband and her statement due to some family problems she has consumed around 15 tablets of anxit 0.25 mg (alprazolam) at around 7pm on 01-05-2011. The problem is diagonised as acute substance

abuse. Since the case is not of so serious in nature and patient is consciously with some drowsiness brought to the hospital. All necessary tests and precautionary observations were undertaken with having consent of husband, and necessary medication was given to her, by admitting her to ICU. By next day she was shifted to ward, when found stability in all tests. The self-Certified copy of case sheet and consent form is produced as Annexure -3 & 4. 5. On 02-05-2011 itself at early morning itself some police men from Rural police station taking the statement of above complainant, on being enquired by the staff, the complainant has told that she has given complaint to Rural police station regarding the incident. When the office staff of this opponent cross checked with the Rural police they disclosed that a criminal case has been registered in the morning at 09-45 AM on 02-05-2011. 6. The staff of the hospital asked again the complainant whether any intimation has to be given to police. The complainant has stated that she has already given complaint. There ends the duty of this opponent under section 39 of CRPC. 7. These above all incident as narrated is what happened, but with ulterior motive complainant falsely states in her complaint that she was forcibly inducted with liquid poison and the said thing is told to duty doctor. Neither the patient (present complainant) nor her husband has stated such cause for her state of affairs during that period. 8. The averment that there is a responsibility upon opponent to intimate to the police is not disputed, but when complainant already given complaint about the case and the case was being

registered with Tumkur Rural Police station in CR No. 0135/2011, there ends our duty to inform police. The certified copy of complaint and FIR in the above CR number obtained recently after the receipt of above case notice is produced as Annexure-5 & 6, for kind perusal of the Honble court. 9. It is false to say that the duty doctor has been told with such presently alleged criminal history of the case either by complainant or her husband. The complainant has falsely misconstrued the legal duty of opponent under section 39 of CRPC to that of service, when complainant herself have admitted before this opponent to have given complaint, and since it is her family problems, the opponent never dwelt beyond the information what they received, after cross checking with rural police. It is not this opponents duty also to cross verify, whether correct complaint is given or wrong complaint is given or whether police are properly investigating or not. 10. Although complainant has no such grievous problems in the

medical test, she complained of her uneasiness and hence continued to the date of 07-05-2011 at 11-30 AM. In the meanwhile complainant has gone out of the hospital on two occasions on 03-05-2011 and 05-05-2011. The certified copy of letter given to this opponent written in the handwriting of above complainant is produced as Annexure-7 & 8. 11. The complainant and her husband on 05-05-2011 insisted

upon hospital to give certificates as needed by their advocate. And also to send intimation as per their later versions. Then only the opponents realized that some fishy attitude is going on with complainant side. Later in the eve of that day, the hospital staff at the counter were orally threatened by

complainant, her husband and their advocate, hence to avoid any further complications a formal report is sent to Rural police on 06-05-2011 and the same was received by the concerned police. The certified copy of intimation given on 0605-2011 is produced as Annexure-9 for kind perusal of the Honble court. 12. Though the intimation to police is already there from

complainant herself, the complainant by hiding such facts have falsely filed complaint before this forum, by taking advantage of her own lapses and delay to fill her latest tutored version of false facts. 13. The facts and allegations filed by complainant in the above

complaint is not only false but deliberately made to gain unlawful advantage over trivial issue of insignificant matter. 14. There is no damage or loss to the complainant from any of

the acts or omissions of this opponent. The complainant in turn making false and deliberate allegations to gain unlawfully by hiding many things before the court, this is a fraud not only on us but also on court time. 15. The complainant has not issued any notice to any one of the

Hospital authorities and the receipt of the notice dated 19-052011 is hereby denied. 16. There is no negligence on the part of either duty doctor or

hospital management or any hospital staff of the opponent hospital; complainant is put to strict proof of the same after disclosing true set of facts.

17.

The opponent humbly submits as follows:-

By having

hurted with the way the complainant and her husband and advocate of them behaved with this opponent, this opponent after receiving the above case notice found after suitable enquiry the following set of facts which is purposefully hidden before the court. a). It is found that, The complainant has filed a civil suit for partition before civil court of tumkur in OS 18/2010 way back in early months of 2010 itself, therein in that case out of the defendants one vijayakumari is also there. All the defendants are residents of Arkere village. The allegations that Vijayalakshmi @ Vijayakumari forced complainant to drink poison is an un-assumable case when they are having civil litigations with each other. b). It is found that, The complainants husband is accused of crime occurred on 01-05-2011 at 23-30 hours (just one and half hours before admitted to the hospital) in crime number 0056/2011 of Tumkur Town police station, an FIR has been lodged with Tumkur Town police, complaint copy and FIR is produced for kind perusal of the Honble court as Annexure-10 & 11. c). It is found that, The complainant has also given complaint to Tilak Park police stating one Girija w/o Shivarudraiah aged 36 years have stolen ornaments of her on 16-05-2011, the respective police have registered NCR. 33/2011, and closed as fake complaint. The copies may be summoned through the court if complainant disputes such fact by counter pleadings.

d). It is of reasonable assumption by perusing such facts, In order to avoid the crime action in CR No. 0056/2011 of Town Police the complainant and her husband along with their advocate making hectic efforts to get fake certificates and documents, allegating with so many twisted and selfincriminating versions. e). It is remote possibility that complainant has gone to vijayakumari house when a civil case against them is pending. Hence her latest version is false compared with existing reality. f). Even if the incident of liquid poisoning is true nothing prevented complainant or her husband to file early complaint with the police. Nothing prevented complainant to have taken further course of action as contemplated in CRPC. g). At first complainant appears to have an intention to divert the issue of crime occurred within Town Police and seek false evidence by filing complaint with rural police alleging her husbands presence in arkere on the same day of occurrence. h). Later complainant wanted to harass the unconcerned

persons of civil suit in the criminal case and want to change her basic version of complaint given by herself to police. i). When this opponents without all these knowledge of above facts during complainants stay in hospital, have not consented to give false certificates, as a result they began harassing opponents with ulterior motive.

18.

The above criminal acts of Complainant and her husband is

purposefully hidden before the court to unlawfuly gain over the lapses of the complainant themselves. 19. The Honble court is having ample power to impose

maximum penalty over this false complaint. The Honble court have ample powers to bring to the notice of concerned police, regarding complainants attitude to cook up records to bring out criminal from the criminal case and also intimation to police to book further case of criminal intimidation done to this opponent to secure false evidence to the pending cases.

Wherefore the complaint may be dismissed treating the complaint as false, fraudulent, abuse of process of court, ulterior motive complaint with heavy penalty and contrary compensation to this opponent, in the ends of justice. Date: 10-08-2011 Place:- Tumkur OPPONENT

Advocate for opponent VERIFICATION Whatever stated above is true to the best of my knowledge, information and belief. I do verify the same and sign as below.

Date: 10-08-2011 Place:- Tumkur OPPONENT

IN THE COURT OF DISTRICT CONSUMER DISPUTE REDRESSAL FORUM AT TUMKUR COM.NO. 85/2011
COMPLAINANT DAKSHYANI @ CHANDRAKALA VS OPPOSITE PARTY DUTY DOCTOR NARASIMHAIAH HOSPITAL

LIST OF DOCUMENTS
NO DOCUMENT PARTICULARS 1 Voter list available online in state election commission website 2 Case summary and discharge record 3 Copy of case sheet and consent form 4 -5 Complaint copy and FIR of Tumkur Rural Police station in CR No. 0135/2011 6 -7 Copy of letter given to this opponent written in the handwriting of above complainant 8 -9 The certified copy of intimation given on 06-052011 10 Complaint and FIR in crime number 0056/2011 of Tumkur Town police station. NATURE COPY FROM INTERNET self-attested copy self attested copy -Certified copy from court -self-attested copy --Certified copy from court

Date: 10-08-2011 Place:- Tumkur OPPONENT

Advocate for opponent

IN THE COURT OF DISTRICT CONSUMER DISPUTE REDRESSAL FORUM AT TUMKUR COM.NO. 85/2011
COMPLAINANT DAKSHYANI @ CHANDRAKALA VS OPPOSITE PARTY DUTY DOCTOR NARASIMHAIAH HOSPITAL

INDEX NO PARTICULARS 1 2 3 Objections and Written statement of opponent Verifying affidavit List along with 11 documents PAGES

Date: 10-08-2011 Place:- Tumkur OPPONENT

Advocate for opponent

ENTRE COPIES OF ABOVE RECIEVED BY ME

COMPLAINANT COUNSEL/COMPLAINANT

IN THE COURT OF DISTRICT CONSUMER DISPUTE REDRESSAL FORUM AT TUMKUR COM.NO. 85/2011
COMPLAINANT DAKSHYANI @ CHANDRAKALA VS OPPOSITE PARTY DUTY DOCTOR NARASIMHAIAH HOSPITAL AFFIDAVIT

I Dr K.N. Sudheer S/o Late Dr. K.N. Narasimhaiah aged about 45 years proprietor of Dr Narasimhaiah hospital, do hereby solemnly affirm and state on oath as follows:1. I submit that, I am the opponent Hospital proprietor in the above case. I am well conversant with the facts of the case. Hence, I am swearing to the contents of this affidavit. 2. I submit that, the case is one filed against me by complainant, today I have filed the objections and written statement against the complaint averments. Further, I submit, that, the averments made in the para-1 to para- 19 of my objections, may kindly be read as part and parcel of this affidavit in order to avoid repetition of facts. 3. I submit that, the averments made in para 1 to 19 of the accompanying Objections and statement are true and correct to the best of my knowledge, information and belief. 4. I submit that, the Documents Annexure 1 to 11 produced along with this objections are copies of the Original. I, the deponent herein, do hereby declare that this is my name, signature and that the contents of this affidavit are true and correct to the best of my knowledge, information and belief. PLACE : Tumkur DATED : 09-08-2011 Identified by me, DEPONENT Advocate,

IN THE COURT OF DISTRICT CONSUMER DISPUTE REDRESSAL FORUM AT TUMKUR COM.NO. 85/2011

COMPLAINANT DAKSHYANI @ CHANDRAKALA

VS

OPPOSITE PARTY DUTY DOCTOR NARASIMHAIAH HOSPITAL

EVIDENCE BY WAY OF AFFIDAVIT NAME : Dr. SUDHEER

FATHER NAME : LATE K.N.NARASIMHAIAH AGE OCCUPATION ADDRESS : 45 YEARS : SURGEON : DR. K.NARASIMHAIAH HOSPITAL 4TH MAIN, GANDHI NAGAR, TUMKUR-572101

I the above named respondent hospital proprietor do hereby solemnly affirm and state on oath as follows:20. I respectfully submit that, The complainant has not given

correct address to the Honb le court and her name is also twisted by giving false identity as to her husband name. This is purposefully to avoid future adverse effects from this false complaint. To evidence such facts the voter list available online in state election commission website is produced for kind perusal of the Honble court as Annexure-1, it may be taken on record. 21. I respectfully submit that, On the night between 01-05-

2011 and 02-05-2011 at about 1-00 AM the complainant is

brought by her husband to the opponent hospital is an undisputed fact. To evidence the fact the case summary and discharge record self attested copy is produced as Annexure-2, it may be taken on record. 22. I respectfully submit that, It is false to say that complainant

was brought with as presently alleged criminal history. As per her husband and her statement due to some family problems she has consumed around 15 tablets of anxit 0.25 mg (alprazolam) at around 7pm on 01-05-2011. The problem is diagonised as acute substance abuse. Since the case is not of so serious in nature and patient is consciously with some drowsiness brought to the hospital. All necessary tests and precautionary observations were undertaken with having consent of husband, and necessary medication was given to her, by admitting her to ICU. By next day she was shifted to ward, when found stability in all tests. The self-Certified copy of case sheet and consent form is produced as Annexure -3 & 4. It may be taken on record. 23. I respectfully submit that, On 02-05-2011 itself at early

morning itself some police men from Rural police station taking the statement of above complainant, on being enquired by the staff of our hospital, the complainant has told that she has given complaint to Rural police station regarding the incident. When the office staff of this opponent cross checked with the Rural police they disclosed that a criminal case has been registered in the morning at 09-45 AM on 02-05-2011. 24. I respectfully submit that, The staff of the hospital asked

again the complainant whether any intimation has to be given to police. The complainant has stated that she has already given complaint. There ends the duty of this opponent.

25.

I respectfully submit that,

These above all incident as

narrated is what happened, but with ulterior motive complainant falsely states in her complaint that she was forcibly inducted with liquid poison and the said thing is told to duty doctor. Neither the patient (present complainant) nor her husband has stated such cause for her state of affairs during that period. 26. I respectfully submit that, The averment that there is a

responsibility upon opponent to intimate to the police is not disputed, but when complainant already given complaint about the case and the case was being registered with Tumkur Rural Police station in CR No. 0135/2011, there ends our duty to inform police. The certified copy of complaint and FIR in the above CR number obtained recently after the receipt of above case notice is produced as Annexure-5 & 6, for kind perusal of the Honble court. It may be taken on record. 27. I respectfully submit that, It is false to say that the duty

doctor has been told with such presently alleged criminal history of the case either by complainant or her husband. The complainant has falsely misconstrued the legal duty of opponent under section 39 of CRPC to that of service, when complainant herself have admitted before this opponent to have given complaint, and since it is her family problems, the opponent never dwelt beyond the information what they received, after cross checking with rural police. It is not this opponents duty also to cross verify, whether correct complaint is given or wrong complaint is given or whether police are properly investigating or not.

28.

I respectfully submit that,

Although complainant has no

such grievous problems in the medical test, she complained of her uneasiness and hence continued to the date of 07-05-2011 at 11-30 AM. In the meanwhile complainant has gone out of the hospital on two occasions on 03-05-2011 and 05-05-2011. The certified copy of letter given to this opponent written in the handwriting of above complainant is produced as Annexure-7 & 8. It may be taken on record for kind perusal of the same. 29. I respectfully submit that, The complainant and her

husband on 05-05-2011 insisted upon hospital to give certificates as needed by their advocate. And also to send intimation as per their later versions. Then only the opponents realized that some fishy attitude is going on with complainant side. Later in the eve of that day, the hospital staff at the counter were orally threatened by complainant, her husband and their advocate, hence to avoid any further complications a formal report is sent to Rural police on 06-05-2011 and the same was received by the concerned police. The certified copy of intimation given on 06-05-2011 is produced as Annexure-9 for kind perusal of the Honble court. 30. I respectfully submit that, Though the intimation to police

is already there from complainant herself, the complainant by hiding such facts have falsely filed complaint before this forum, by taking advantage of her own lapses and delay to fill her latest tutored version of false facts. 31. I respectfully submit that, The facts and allegations filed by

complainant in the above complaint is not only false but deliberately made to gain unlawful advantage over trivial issue of insignificant matter.

32.

I respectfully submit that, There is no damage or loss to the

complainant from any of the acts or omissions of this opponent. The complainant in turn making false and deliberate allegations to gain unlawfully by hiding many things before the court, this is a fraud not only on us but also on court time. 33. I respectfully submit that, The complainant has not issued

any notice to any one of the Hospital authorities and the receipt of the notice dated 19-05-2011 is hereby denied. 34. I respectfully submit that, There is no negligence on the

part of either duty doctor or hospital management or any hospital staff of the opponent hospital; complainant is put to strict proof of the same and she failed to prove her allegations with proof. 35. I respectfully submit that, By having hurted with the way this

the complainant and her husband and advocate of them behaved with this opponent hospital authorities, opponent after receiving the above case notice found after suitable enquiry the following set of facts which is purposefully hidden before the court. a). It is found that, The complainant has filed a civil suit for partition before civil court of tumkur in OS 18/2010 way back in early months of 2010 itself, therein in that case out of the defendants one vijayakumari is also there. All the defendants are residents of Arkere village. The allegations that Vijayalakshmi @ Vijayakumari forced complainant to drink poison is an un-assumable case when they are having civil litigations with each other. Since we are not parties to the case and obtaining of copies is to be through RTI and due to short

time the copies are unabled to obtain, the complainant is to show such things with proof. b). It is found that, The complainants husband is accused of crime occurred on 01-05-2011 at 23-30 hours (just one and half hours before admitted to the hospital) in crime number 0056/2011 of Tumkur Town police station, an FIR has been lodged with Tumkur Town police, complaint copy and FIR is produced for kind perusal of the Honble court as Annexure-10 & 11. c). It is found that, The complainant has also given complaint to Tilak Park police stating one Girija w/o Shivarudraiah aged 36 years have stolen ornaments of her on 16-05-2011, the respective police have registered NCR. 33/2011, and closed as fake complaint. The copies may be summoned through the court if complainant disputes such fact by counter pleadings. d). It is of reasonable assumption by perusing such facts, In order to avoid the crime action in CR No. 0056/2011 of Town Police the complainant and her husband along with their advocate making hectic efforts to get fake certificates and documents, allegating with so many twisted and selfincriminating versions. e). It is remote possibility that complainant has gone to vijayakumari house when a civil case against them is pending. Hence her latest version is false compared with existing reality. f). Even if the incident of liquid poisoning is true nothing prevented complainant or her husband to file early complaint

with the police. Nothing prevented complainant to have taken further course of action as contemplated in CRPC. g). At first complainant appears to have an intention to divert the issue of crime occurred within Town Police and seek false evidence by filing complaint with rural police alleging her husbands presence in arkere on the same day of occurrence. h). Later complainant wanted to harass the unconcerned

persons of civil suit in the criminal case and want to change her basic version of complaint given by herself to police. i). When this opponents without all these knowledge of above facts during complainants stay in hospital, have not consented to give false certificates, as a result they began harassing opponents with ulterior motive. 36. I respectfully submit that, The above criminal acts of

Complainant and her husband is purposefully hidden before the court to unlawfuly gain over the lapses of the complainant themselves. 37. I respectfully submit that, The Honble court is having

ample power to impose maximum penalty over this false complaint. The Honble court have ample powers to bring to the notice of concerned police, regarding complainants attitude to cook up records to bring out criminal from the criminal case and also intimation to police to book further case of criminal intimidation done to this opponent to secure false evidence to the pending cases.

Wherefore the complaint may be dismissed treating the complaint as false, fraudulent, abuse of process of court, ulterior motive complaint with heavy penalty and contrary compensation to this opponent, in the ends of justice. So I do swear and affirm that the facts herin above narrated are true and correct to the best of my knowledge and belief and I do affirm the same and sign below

Date: 08-09-2011 Place:- Tumkur IDENTIFIED BY ME DEPONENT

ADVOCATE

IN THE COURT OF DISTRICT CONSUMER DISPUTE REDRESSAL FORUM AT TUMKUR COM.NO. 85/2011

COMPLAINANT

VS

OPPOSITE PARTY DUTY DOCTOR NARASIMHAIAH HOSPITAL

DAKSHYANI @ CHANDRAKALA

WRITTEN ARGUMENTS OF OPPOSITE PARTY:-

1. The contents and points raised in written objections and affidavit may be read as part and parcel of this written arguments. The complaint is not mainatainable on the following among other grounds urged in this written arguments. 2. The party approaching the Honble court has to come with clean hands without suppressing material facts. The material facts herein is the filing of FIR by complainant herself before Rural Police. 3. The duty doctor has observed in his case history no signs of organo phosphorus poisoning symptoms. Even if for argument sake it is believed that complainant is poisoned by forceful administration of poison, the symptomps of such commonly available poisons in village side is different. To substantiate the point the supreme court observations is apt to quote here. Jaipal vs State Of Haryana AIR 2002 SC 3447 Modi in Medical Jurisprudence & Toxicology (TwentySecond Edition) states (at pp.197-198) that Aluminium Phosphide (Celphos) is used as a fumigant to control insects and rodents in food grains and fields. In reported cases of poisoning, symptoms which have been found are burning pain in the mouth, throat and stomach, vomiting mixed with blood, dyspnoea, rapid pulse, subnormal temperature, loss of co-ordination, convulsions of a clonic nature and death. In the solid form, it acts as corrosive in the mouth and throat as it precipitates proteins. In

postmortem appearance, the tongue, mouth and oesophagus are oedematous and corroded. The mucous membrane of the stomach is corrugated, loosened or hardened and is stained red or velvety. The intestines are inflamed.According to Modi symptoms and signs of poisoning by aluminium phosphide are similar to poisoning by zinc phosphide (p.197, ibid). The chief symptoms after the administration of zinc phosphide are a vacant look, frequent vomiting with retching, tremors and drowsiness followed by respiratory distress at death. Zinc phosphide acts as a slow poison and is decomposed by hydrochloric acid in the stomach with the liberation of phosphine which acts as a respiratory poison. Being a very fine powder zinc phosphide adheres firmly to the crypts in the mucous membrane of the stomach, and a very small quantity only in the stomach even after vomiting is sufficient to cause death by slow absorption.. Aluminium phosphide is available in the form of chalky white tablets. When these tablets are taken out of the sealed container, they come in contact with atmospheric moisture and the chemical reaction takes place liberating phosphene gas (PH3) which is the active ingredient of ALP. This gas is highly toxic and effectively kills all insects and thus preverves the stored grains. When these tablets are swallowed, the chemical reaction is accelerated by the presence of hydrochloric acid in the stomach and within minutes phosphine gas dissipates and spreads into the whole body. The gas is highly toxic and damages almost every organ but maximal damage is caused to heart and lungs. Sudden cardiovascular collapse is the hallmark of acute poisoning. Patients come with fast thready or impalpable arterial pulses, unrecordable or low blood pressure and icy cold skin. Somehow these patients remain conscious till the end and continue to pass urine despite unrecordable blood pressure. Vomiting is a prominent feature associated with epigastric burning sensation. The patients will be smelling foul (garlic like) from their breath and vomitus. Many of them will die within a few hours. Those who survive for some time will show elevated juglar venous pressure, may develop tender hepatomegaly and still later Adult Respiratory Distress Syndrome (ARDS), renal shut down and in a very few cases toxic hepatic jaundice. The active ingredient of ALP is phosphine gas which causes extensive tissue damage. A spot clinical diagnosis is possible in majority of cases of ALP poisoning.

4. The complainant statement in complaint is misleading and suppression of material facts. The Constitution Bench of Supreme Court in Naraindas vs. Government of Madhya Pradesh and Others, AIR 1974 SC 1252 held that if a wrong or mis-leading statement is deliberately and wilfully made by a party to a litigation with a view to obtain a favourable order, it would prejudice or interfere with the due course of judicial proceeding and thus amount to contempt of court. 5. Spinning stories is common in criminal proceedings. Supreme Court in Shankarlal Gyarasilal Dixit v. State of Maharashtra, reported in AIR 1981 SC 765 : (1981 Cri LJ 325) cautioned - 'human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions'. The Apex Court has also held time and again that between "may be true" and "must be true" there is a long distance to travel which must be covered by clear, cogent and unimpeachable evidence by the prosecution before an accused is condemned as a convict. 6. The statement made before police in a written form by the complainant herself throws out theory of homicide. Supreme Court in Dandu Lakshmi Reddy v. State of A. P. 1999 (7) SCC 69 : (1999 Cri LJ 4287) observed that on the fact situation of a case a judicial mind would tend to wobble between two equally plausible hypothesis was it suicide, or was it homicide? If the dying declaration projected by the prosecution gets credence, the alternative hypothesis of suicide can be eliminated Justifiably. For that purpose a scrutiny of the dying declaration with meticulous circumspection is called for. It must be sieved through the judicial cullendar and if it passes through the gauzes, it can be made the basis of a conviction, otherwise not. 7. The perons who come to court with bonafides only has to get relief. There is increase in malicious filing of cases for unlawful gain. This aspect is discussed in Supreme Court in Dr. B. Singh vs. Union of India and Others, (2004) 3 SCC 363 held that only a person who comes to the Court with bonafides and public interest can have locus. Coming down heavily on busybodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no public interest except for personal gain or private profit either of themselves or as a proxy of others or for any

other extraneous motivation or for glare of publicity, Supreme Court at para 14 of the report held as under:- "The court has to be satisfied about: (a) the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; and (c) the information being vague and indefinite. The information should show gravity and seriousness involved. Court has to strike a balance between two conflicting interests: (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the executive and the legislature. The court has to act ruthlessly while dealing with imposters and busybodies or meddlesome interlopers impersonating as public spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of pro bono publico, though they have no interest to the public or even of their own to protect." 8. Suppression of Material facts by litigant surrounding cause of action is criminal contempt, abuse of process of court. In S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Ors. [(2004)7SCC166], Supreme court on suppression of fact held : "As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the Courts to deter a litigant from abusing the process of Court by deceiving it. But the suppressed fact must be a material one in the sense that had it not bean suppressed it would have had an effect on the merits of the case." In Arunima Baruah v. Union of India (UOI) and Ors. [(2007) 6 SCC 120], wherein the question which was raised was: How far and to what extent suppression of fact by way of non- disclosure would affect a person's right of access to justice? The court notices that so as to enable it to refuse to exercise its discretionary jurisdiction, the suppression must be of material fact. What would be a material fact, suppression whereof would disentitle the Appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case. The Honble Judges of Karnataka High court V. Gopala Gowda, J. and L Narayanaswamy J, in

The Bangalore Development ... vs Gururaj ILR 2007 KAR 5184, 2008 (1) KarLJ 684 observed that Certain acts of a lesser nature may also constitute an abuse or process as, for instance, initiating or carrying on proceedings which are wanting in bona fides or which are frivolous, vexatious, or oppressive. In such cases the court has extensive alternative powers to prevent an abuse of its process by striking out or staying proceedings or by prohibiting the taking of further proceedings without leave. Where the court, by exercising its statutory powers, its powers under rules of court, or its inherent jurisdiction, can give an adequate remedy, it will not in general punish the abuse as a contempt of court. On the other hand, where an irregularity or misuse of process amounts to an offence against justice, extending its influence beyond the parties to the action, it may be punished as a contempt. 9. Suppression of truth involves fraud, State Government Houseless ... vs State Of Karnataka ILR 1994 KAR 2947, 1995 (1) KarLJ 67 Now let us consider the legal implication of the words "mis-statement" or "suppression of fact". "Mis-statement" or mis-representation" can be made by a mistake or inadvertantly, whereas suppression of truth carries with it the doctrine "suppressio veri and suggestio falsi". This Legal maxim which is the basis for the doctrine of "suppression of fact" must necessarily refer to "suppression of material fact". Secondly, according to Prem's Judicial Dictionary, Vol. IV 1964 Edition, at page 1564, the suppression or concealment of a material fact must be such suppression or concealment as has in it some element of fraud, Therefore, the Court will have to see whether the appellant has intentionally suppressed any material fact containing some element of fraud resulting in the Court conferring certain benefit on him. 10. The reaction to particular offence and particular state of victim differs in each circumstances. The duty doctor if found to have seen that it is severe poisoning symptoms. At night only he would have intimated police. The statement of victim and her husband itself tallied with the state of victim, and it is natural conduct on the part of medical men to see first the victims attendance that to the case came on night. Moreover offence has not occurred in hospital premises. Doctor has to believe whatever statement made at the time of

admission.

In , Rana Partap v. State of Haryana, AIR 1983 SC 680,

1983 CriLJ 1272, 1983 (2) Crimes 342 SC the Supreme Court has held that evidence of a witness cannot be discarded on the ground that they did not react in a particular manner. The Supreme Court has held as follows : "Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of witnesses on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way." 11. The first information given by complainant to police is relevant until and unless complainant registers another complaint before IO explaining how her earlier statement is made and nature of other offences involved therein. No such explanation is forthcoming from complainant side. T.T. Antony v. State of Kerala and Ors. 2001 6 Supreme Court Cases 181, Sub-section (1) of Section 154 of Cr.P.C. contains four mandates to an officer in-charge of a police station. The first enjoins that every information relating to commission of a cognizable offence if given orally shall be reduced to writing and the second directs that it be read over to the informant; the third requires that every such information whether given in writing or reduced to writing shall be signed by the informant and the fourth is that the substance of such information shall be entered in the station house diary. It will be apt to note here a further directive contained in sub-section (1) of Section 157 of Cr.P.C. which provides that immediately on receipt of the information the officer in charge of the Police Station shall send a report of every cognizable offence to a Magistrate empowered to take cognizance of the offence and then proceed to investigate or depute his subordinate officer to investigate the facts and circumstances of the case. Sub-section (2) entitles the informant to receive a copy of the information, as recorded under sub-section (1), free of cost. Sub- section (3) says that in the event of an officer in charge of a police station refusing to record the information as postulated under sub- section (1), a person aggrieved

thereby may send the substance of such information in writing and by post to the Superintendent of Police concerned who is given an option either to investigate the case himself or direct the investigation to be made by a police officer subordinate to him, in the manner provided by Cr.P.C., if he is satisfied that the information discloses the commission of a cognizable offence. The police officer to whom investigation is entrusted by the Superintendent of Police has all the powers of an officer in charge of the police station in relation to that offence. An information given under sub-section (1) of Section 154 of Cr.P.C. is commonly known as First Information Report (F.I.R.) though this term is not used in the Code. It is a very important document. And as its nick name suggests it is the earliest and the first information of a cognizable offence recorded by an officer in charge of a police station. It sets the criminal law into motion and marks the commencement of the investigation which ends up with the formation of opinion under Section 169 or 170 of Cr.P.C., as the case may be, and forwarding of a police report under Section 173 of Cr.P.C. It is quite possible and it happens not infrequently that more informations than one are given to a police officer in charge of a police station in respect of the same incident involving one or more than one cognizable offences. In such a case he need not enter every one of them in the station house diary and this is implied in Section 154 of Cr.P.C. Apart from a vague information by a phone call or a cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer in charge of a police station is the First Information Report - F.I.R. postulated by Section 154 of Cr.P.C. All other informations made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the First Information Report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under Section 162 of Cr.P.C. No such information/statement can properly be treated as an F.I.R. and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of the Cr.P.C. Take a case where an FIR mentions cognizable offence under Section 307 or 326 I.P.C. and the investigating agency learns during the investigation or receives a fresh information that the victim died, no fresh FIR under Section 302 I.P.C. need be registered which will be irregular; in such a

case alteration of the provision of law in the first FIR is the proper course to adopt. Let us consider a different situation in which H having killed W, his wife, informs the police that she is killed by an unknown person or knowing that W is killed by his mother or sister, H owns up the responsibility and during investigation the truth is detected; it does not require filing of fresh FIR against H - the real offender-who can be arraigned in the report under Section 173(2) or 173(8) of Cr.P.C., as the case may be. It is of course permissible for the investigating officer to send up a report to the concerned Magistrate even earlier that investigation is being directed against the person suspected to be the accused. The scheme of the Cr.P.C. is that an officer in charge of a Police Station has to commence investigation as provided in Section 156 or 157 of Cr.P.C. on the basis of entry of the First Information Report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of evidence collected he has to form opinion under Section 169 or 170 of Cr.P.C., as the case may be, and forward his report to the concerned Magistrate under Section 173(2) of Cr.P.C. However, even after filing such a report if he comes into possession of further information or material, he need not register a fresh FIR, he is empowered to make further investigation, normally with the leave of the court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of sub-section (8) of Section 173 Cr.P.C. From the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156,157, 162, 169, 170 and 173 of Cr.P.C. only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 Cr.P.C. Thus there can be no second F.I.R. and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the F.I.R. in the station house diary, the officer in charge of a Police Station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or

the same occurrence and file one or more reports as provided in Section 173 of the Cr.P.C. 12. Even police cannot verify the truthfulness of victim information or statement. Only thing they can do is to register case and investigate. When once the information given is complete there will be no further information over the same by a person who has not seen the offence. Ramesh Kumari v. State (N.C.T. of Delhi) & Ors. reported in (2006) 2 SCC 677, Be it noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression ``information'' without qualifying the same as in Section 41(1)(a) or (g) of the Code wherein the expressions, ``reasonable complaint'' and ``credible information'' are used. Evidently, the nonqualification of the word ``information'' in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, `reasonableness' or `credibility' of the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word ``information'' without qualifying the said word. Section 139 of the Code of Criminal Procedure of 1861 (Act 25 of 1861) passed by the Legislative Council of India read that `every complaint or information' preferred to an officer in charge of a police station should be reduced into writing which provision was subsequently modified by Section 112 of the Code of 1872 (Act 10 of 1872) which thereafter read that `every complaint' preferred to an officer in charge of a police station shall be reduced in writing. The word `complaint' which occurred in previous two Codes of 1861 and 1872 was deleted and in that place the word `information' was used in the Codes of 1882 and 1898 which word is now used in Sections 154, 155, 157 and 189(c) of the present Code of 1973 (Act 2 of 1974). An overall reading of all the Codes makes it clear that the condition which is sine qua non for recording a first information report is that there must be an information and that information must disclose a cognizable offence.

13. The negligence complained against this opponent is not of professional negligence connected with the professional expertise. Jacob Mathew v. State of Punjab and Another [(2005) 6 SSC 1] In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices. .. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of

treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. 14. The averment that there is a responsibility upon opponent to intimate to the police is not disputed, but when complainant already given complaint about the case and the case was being registered with Tumkur Rural Police station in CR No. 0135/2011, there ends doctors and every ones duty to inform police. Moreover doctor is not eye witness to the incident. Before formal intimation is sent by doctors when the police is found to have taken complaint, further intimation by this doctor of insignificance. There is no negligence from such perception. Even if any damages has been incurred by complainant it will be due to police and complainant herself and not due to any omission or commission of this opponents.

Wherefore the complaint may be dismissed treating the complaint as false, fraudulent, abuse of process of court, ulterior motive complaint with heavy penalty and contrary compensation to this opponent, in the ends of justice.

Date: 03-10-2011 Place:- Tumkur

Advocate for opponent