Packia Rethnam alias A.P. Retna Singh vs Dr. N.C. Dhanu and Others

P. Murgesen, J.—The Criminal Appeal is directed against the order dated 07.04.2000 rendered in Crl.R.C. No. 8 of 1999 by the learned

Principal Sessions Judge, Nagercoil and the judgment rendered in C.C. No. 279 of 1994 dated 11.01.1994 by the learned Judicial Magistrate

No. II, Nagercoil.

The case of complainant briefly is as follows:

i) P.W.1, the complainant is the resident of Manguzhi. Her husband was working as P.T.Assistant in Unnamalaikadai. P.Ws.2 and 3 knew the

complainant and the accused.

(ii) The husband of complainant was affected by Hydrosal problem. He was undergone treatment from the 3rd accused, Dr.Devaprakash. Later

on, on 30.04.1993 at about 9.00 P.M., the complainant and her husband went there and he was admitted in the second accused M.L.Hospital for

treatment by the advise and under the direction of the third accused. P.W.2, sister of P.W.1 and P.W.3, son of P.W.1 were also went to

M.L.Hospital. At the time of admission, the second accused received Rs.500/- towards an advance for operation charges. But, they were not

given any receipt for the same.

(iii) At about 10.10 P.M., the patient was taken to the operation theater for operation. They did not give any medicine to the patient during the time

of 9.00 P.M to 10.10 P.M. No prior formalities were conducted for the operation to the patient by the doctors. The operation was conducted by

the first accused, who was assisted by the accused. Fourth accused is the anesthetist, who gave anesthesia to P.W.1''s husband. The operation

was completed at 11.20 P.M. P.W.1 was permitted to see the patient. At that time, all the accused 1,3,4 and 6 left from the hospital. Only the

duty Nurse, A5 was alone in the hospital.

(iv) At about, 12.00 A.M., firth accused gave an injunction to the patient. P.W.1 was not aware about the name of injunction. Then, within five or

10 minutes, the patient was affected by fits and having froth.

(v) Ultimately, on 01.05.1993, at about 00.15 hours, the patient died. None of the doctors available at the time of the death of victim. The accused

1 to 3 and 6 came to the hospital only after 1.15 A.M. Without getting consent of P.W.1, A1 to A3 took the dead body of the P.W.1''s husband

in Dr.Radhakrishnan''s car to Dr.Jeyasekaran Hospital, Parvathipuram. Dr.Radhakrishnan was driving the car and A3 and A6 were sitting at the

front row seat of the car and P.Ws.1 to 3 were sitting at the back row with the dead body. Since, the dead body was not allowed to the said

hospital, it was taken to government Headquarters Hospital, Kottar, where Dr.Radhakrishnan was working. There also the dead body was not

allowed. Then, the body was sent to the house of P.W.1 by them.

(vi) Then, P.W.1 gave a complaint to Nesamony Nagar Police Station. There, a case was registered in Cr. No. 83 of 1993 u/s 304-A I.P.C and

prepared printed First Information Report. The certified copy of the First Information Report is Ex.P.1. Then, the police sent the body for Post-

mortem. The certified copy of Post-mortem Certificate is Ex.P.2.

(vii) On 02.06.1994, the complainant sent a letter under Ex.P.3 to the accused Nos. 1 to 4. They sent a reply with false allegation under Ex.P.4.

The complainant sent a letter under Ex.P.5 to the fifth accused and she sent a reply letter under Ex.P.6. The complainant also sent a letter to the

Jeyasekaran Hospital under Ex.P.7. Ex.P.8 is the death extract of Manevel singh, the husband of complaint. The Inspector of Police, Nesamony

Nagar had not considered the facts and law of the case and referred the case on 02.09.1994. Hence, the complainant filed this complaint.

Before trial Court, P.Ws.1 to 3 were examined and Exs.P.1 to 12 were marked. On completion of the examination of witnesses on the side of

the prosecution, the accused were questioned u/s 313 Cr.P.C., as to the incriminating circumstances found against them in the evidence of the

prosecution witnesses and they denied them as false. On the side of the respondent, R.W.1 was alone examined and Ex.R.1 was alone marked.

R.W.1, Dr.A.M.Rajan, who conducted the post mortem on the body of the complainant''s husband. Ex.R.1 is the Histopathology Report of the

deceased. He has opined that the death was occurred due to Acute myocardial infection.

On consideration of the evidence on record, the learned Judicial Magistrate No. II, Nagercoil found that the complainant has not proved her

case beyond reasonable doubt and acquitted the accused. Aggrieved over the above said judgment, the complainant preferred a Revision in

Crl.R.C. No. 8 of 1999 before the learned Principal Sessions Judge, Nageroil, where the Revision was was dismissed on the ground of

jurisdiction.

Challenging the judgment of the trial Court and rejection of the revision, the complainant has filed this criminal appeal.

The point for consideration is:

Whether the complainant has proved the case beyond reasonable doubt?

The point: i) P.W.1, the complainant is the resident of Manguzhi. Her husband was working as P.T.Assistant in Unnamalaikadai. The husband of

complaint was affected by Hydrosal problem. He was treated by the 3rd accused, Dr.Devaprakash. Later on, on 30.04.1993 at about 9.00 P.M.,

the complainant and her husband went to second accused M.L.Hospital and the patient was admitted for treatment. On 30.04.1993, the husband

of the complainant had undergone the operation at 10.10 hours. But, unfortunately, he died at 12.05 A.M on 01.05.1993 after the operation.

It is the stand of the complainant that due to negligence surgery was performed to her husband by the accused, her husband died. The body was

sent to Post-mortem and R.W.1 conducted the Post-mortem and issued Ex.P.2 Post-mortem Certificate and Ex.R.1 Pathology Report.

Learned Counsel for the appellants vehemently argued that due to negligence of the respondents doctors, the appellant''s husband expired.

P.W.1 claimed that her husband was taken to operation theater at about 10.10 P.M. From 9.00 P.M to 10.10 P.M., the husband of appellant

was not given sufficient medicine and so her husband died. P.W.1 is not a qualified doctor or a woman of the medical field. She also stated that

she did not enter in to the operation theater. So, she was not aware what happened in the operation theater. She stated that Nurse Sasikala

administered an injunction at 12''0 Clock, when the doctors left the hospital. But, she was not able to say that what injunction was administered to

her husband by Sasikala. The nurse Sasikala was shown as 5th accused in the Revision before the Principal Sessions Judge. But, she was not

shown as an accused before the trial Court as well as this Appeal. So, there is a contradiction in mentioning the correct number of accused. The

learned Counsel for the appellant did not give any explanation to this contradiction.

P.W.1 stated in his evidence that the dead body of her husband was taken to Dr.Jeyasekaran Hospital and Government Headquarters

Hospital, Kottar. But, she was not chosen to examine any doctors from those hospitals, where the body was taken to by the accused.

The learned Counsel relied on the decision in Jacob Mathew Vs. State of Punjab and Another, . In the said decision, the conclusions of the

Hon''ble Supreme Court held as follows:

To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something

which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The

hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.

Culpability may attach to the consequence of an error in circumstances where sub-standard antecedent conduct has been deliberate, and has

contributed to the generation of the error or to its outcome.

Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily

regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of

negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P.Singh), referred to hereinabove, holds good. Negligence becomes

actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential

components of negligence are three: ""duty"", ""breach"" and ""resulting damage"".

Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of

a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional

negligence. 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. So also, the standard of care, while

assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly,

when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally

available at that particular time at which it is suggested it should have been used.

A professional may be held liable for negligence on one of the two findings; either he was not possessed of the requisite skill which he professed to

have possessed, or, he did not exercise, with treasonable 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 possible for every branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot

be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.

The test for determining medical negligence as laid down in Bolam case, holds good in its applicability in India.

It is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be ""gross"". The expression ""rash or

negligent act"" as occurring in Section 304-A IPC has to be read as qualified by the word ""grossly.

To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something

which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The

hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.

So, from the above decision, it is clear that it must shown that the accused was negligent in performing the surgery. But, in this case, the

complaint, P.W.1 and P.W.2 were not able to say that what was the negligence on the part of the accused. Even, they were not aware of the

injunction administered by the nurse to her husband. So, the submission of the learned Counsel for the appellant that her husband died due to the

negligence of the accused is not correct.

Further, the body was sent to Post-mortem and Post-mortem conducted by R.W.1. Evidence of R.W.1 would show that the death was

occurred due to Acute myocardial infection. Nothing is elicited to show that the death of of her husband occurred due to the negligence of the

accused. At this stage the counsel for the appellant submitted that the main vein cut during the operation. Such question was not put to the doctors

during the trial. P.Ws.1 and 3 were not inside the operation theater. So, they cannot say that the vein was cut during operation. So, this submission

also would not prove the case of the complainant.

We decided this case with the conclusions of the Hon''ble Supreme Court as mentioned above. Hence, this Court is of the considered view

that the complainant has not proved that the death of her husband was occurred due to the negligence of the accused doctors. The trial Court has

given reasons for acquittal in Paragraph Nos.11 12 and 13. On careful consideration of the judgment and evidence on record, this Court is of the

considered view that the petitioner failed to prove the case of negligence. Hence, there is no reason to interfere with the findings of the trial Court

and the same is sustained.

Accordingly the Criminal Appeal is dismissed and the judgment rendered by the learned Judicial Magistrate No. II, Kuzhithurai in C.C. No.

279 of 1994 dated 11.01.1994 is confirmed.