Bangalore District Court
Deepa Prashanth vs Rajalakshmi V Rao on 15 November, 2025
KABC010112562020
IN THE COURT OF LXVII ADDL CITY CIVIL AND
SESSIONS JUDGE; BENGALURU CITY (CCH.No.68)
PRESENT
SMT.RASHMI.M.
BA.LL.B., LL.M.
LXVII ADDL CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Dated this the 15th day of November 2025.
Crl. Appeal No.626/2020
APPELLANTS : 1. Smt.Deepa Prashanth,
W/o.H.G.Prashanth,
48 years.
2. Sri.H.G.Prashanth,
S/o.H.N.Gopinatha Rao,
Aged about 42 years.
3. Kum.Pragathi Prashanth,
D/o.H.G.Prashanth,
Aged about 19 years.
The appellant Nos.1 to 3 are
R/at.No.129/2, 1st Floor,
Temple Street,
ITI Layout, BSK III Stage,
Bengaluru.
(By Sri.M.H., Advocate)
.Vs.
Crl.Appeal No.626/2020
2
RESPONDENTS : 1. Dr.Rajalakshmi.V.Rao,
W/o.K.V.Rao,
Aged about 62 years,
No.131, 50 Feet Road,
Hanumanthanagar,
Bengaluru.
2. M/s.Brindavan Nursing Home,
Rep. by its Proprietor,
Dr.A.Prakash,
S/o.Late Lakshminarayana Rao,
Aged about 64 years,
R/at.No.17, 4th Main Road,
Chamarajpet,
Bengaluru.
(By Sri.B.R.P., Advocate)
JUDGMENT
This appeal is preferred by the appellants challenging the acquittal judgment passed by the learned XXIV Addl. C.M.M., Bengaluru in C.C.No.2794/2002, dated:28.05.2020 as to the alleged offence under Section 338 of IPC and prays to set aside the impugned judgment & allow the appeal and pass judgment and order of sentence against the respondents.
2. The appellants herein were the complainants and respondents were the accused Nos.1 and 2 before the trial court. For the sake of convenience, parties would be referred to by the ranks they were assigned before the trial court.
Crl.Appeal No.626/2020 3
3. Brief facts of the case are as under:
The accused No.1 is working as Gynecologist and Obstetrician in the accused No.2's hospital namely M/s.Brindavan Nursing Home. The accused No.2- Dr.A.Prakash is the proprietor of the said hospital. As per the advise of the accused No.2, the complainant No.1 was admitted to the Nursing Home for delivery. On 5.08.2001 the complainant No.1 delivered a female child i.e., complainant No.3. After the delivery, it was informed by the accused No.2 that during delivery while pulling the child, the left arm slightly got strained and it will be alright by 10-15 days. At the time of delivery, the accused No.1 got delivered the baby in the process of Forceps, because of that the left hand of the complainant No.3 looked twisted at the wrist, elbow and also shoulder bones. This was caused due to the negligent act of the accused Nos.1 and 2. the complainants have approached the Physiotherapist for the treatment of the complainant No.3, she told that if the baby would have come for treatment within 10-15 days of the delivery, definitely the said infirmity would have been successfully cured. Even after the delivery, the doctors were not advised the complainants and behaved negligently and root cause for disability of the complainant No.3. Hence the complainants were issued notice to the accused, but they have replied untenably. Hence, the accused are alleged to have committed the Crl.Appeal No.626/2020 4 offence punishable under Section 338 r/w. Section 34 of IPC.
4. The appellants/complainants have preferred this appeal on the following grounds :
It is contended that the learned Magistrate has erroneously recorded the findings that the complainant did not establish the mens-rea and has bypassed the findings already given by the Hon'ble High Court of Karnataka in this case. In the cross examination of D.W.1, it is admitted that the case sheet was maintained by the hospital during the delivery of complainant No.3 and same can be produced. Even though it is an hospital document, the accused with held the said document. Further from the cross examination of D.W.1 and cross examination of P.W.2, it is evident that at the time of delivery, the complainant No.1 was unconscious. They have taken a false defense that at the time of delivery, the child had come out of the body of the mother. Accordingly the caesarian operation was not done and Forceps method was adopted. The accused had not informed the complainant No.1 about the Forceps delivery nor complainant No.2 who had accompanied her to the hospital. The accused should have taken the consent of the patient and such an authorisation or permission cannot be considered as authorisation to perform Crl.Appeal No.626/2020 5 therapeutic surgery either conservative or radical. The trial court has not at all appreciated the evidence placed before it and the law laid down in various decisions of the Hon'ble Apex Courts. The trial court has not appreciated the evidence of Expert witness Arathi Prasad. As per the scheme of the offence under Section 338 of IPC, which is punishable because of the inherent danger of the act irrespective of knowledge or intention to produce the results. The criminal culpability for the offence under Section 338 of IPC is determined with reference to rash and negligence in performing the act on the touchstone of the act of a prudent man. Irrespective of the result of the act, the prosecution under Section 338 of IPC can be maintained if hurt is found to have been caused due to rashness or negligence. Further the learned Magistrate has erroneously appreciated the materials on record in as much as recording the finding that the evidence of P.W.3 is type of expert and prayer in the private complaint is made against her cannot be sustained and on the other hand, recorded the finding that the evidence of P.W.3 is not expert evidence and complainants ought to have adduced the expert evidence supporting the allegation. Hence prayed to allow the appeal by setting aside the impugned judgment and order of sentence passed by the trial court.
Crl.Appeal No.626/2020 6
5. The respondents have put their appearance through their counsel.
6. The trial court records were secured.
7. Heard.
8. The points raised for consideration are as under:
1. Whether the appellants have made out sufficient grounds to interfere with the impugned judgment and order of sentence passed by the trial court ?
2. What Order?
9. My findings to the above points are:
POINT No.1 : Negative, POINT No.2 : As per final order, for the following:
REASONS
10. POINT No.1:- I have considered the complaint averments, oral and documentary evidence placed before the trial court along with appeal averments placed before this court, the arguments addressed by both the sides and the decision relied by the learned advocate for appellants reported in 2019(2) SCC 752 (Mallikarjun Kodagali (Dead) represented through legal representatives .Vs. Crl.Appeal No.626/2020 7 State of Karnataka & Others) and Order of the Hon'ble High Court of Karnataka in Crl. Appeal No.75/2014 (A) (Mr.Imran Pasha .Vs. The State of Karnataka by Bellur Police Station & Others), dated:18.03.2010.
11. It is the specific contention of the advocate for appellants that the trial court has bypassed the findings already recorded by the Hon'ble High Court in the case in hand. In this regard it is pertinent to refer to the Order/Judgment dated:26.04.2019 passed by the Hon'ble High Court of Karnataka in Crl. Petition No.2739/2010 C/w. Crl. Appeal No.895/2011, wherein the Crl. Petition and Crl. Appeal was preferred by the appellants herein seeking to set aside the order dated:18.05.2011 passed by the learned I ACMM, Bengaluru in C.C.No.2794/2002 - acquitting the respondent/accused for the offence punishable under Section 418 of IPC. In the said judgment, the Hon'ble High Court of Karnataka on appreciating the evidence of P.Ws.1 to 3 has observed that "the specific accusations made in the complaint are that on account of rash and negligent act of the accused, the child has suffered privation of her shoulder joint. Of course, I am in agreement with the findings of the revisional court that the material on record indicates that the said injury was not Crl.Appeal No.626/2020 8 caused by the accused persons with an intention to cause the injury as required under section 322 of Indian Penal Code. Therefore, the charge under sections 322 and 323 of Indian Penal Code cannot stand against the petitioners. However, there being clear material insofar as commission of the offence punishable under section 338 of Indian Penal Code, in my view, the impugned order passed by the revisional court discharging accused No.1 for the above offence cannot be sustained. As per the scheme of the Code, offence under Section 338 is made punishable because of the inherent danger of the act irrespective of knowledge or intention to produce the results. Criminal culpability for the offence under section 338 is determined with reference to rash and negligence in performing the act on the touchstone of the act of a prudent man. Irrespective of the result of the act, prosecution under Section 338 can be maintained if hurt is found to have been caused due to rashness or negligence. The alleged negligence is attributable only to accused Nos.1 and 2".
12. In view of the said observation, it has been vehemently argued that the Hon'ble High Court of Karnataka has already observed that the alleged Crl.Appeal No.626/2020 9 negligence is attributable only to the accused Nos.1 and
2. Further the accused Nos.1 and 2 were discharged of the offenceS punishable under Sections 322 and 323 of IPC. Further it is held that "consequently the accused Nos.1 and 2 shall face trial for the offence punishable under Section 338 r/w. Section 34 of IPC".
13. In view of the aforesaid contention, it is pertinent to note that from the order of the Hon'ble High Court of Karnataka, it is evident that the accused Nos.1 and 2 were held that they shall face trial for the offence punishable under Section 338 r/w. Section 34 of IPC. The very observation made by the Hon'ble High Court of Karnataka goes to show that the trial court has to give appropriate reason and findings on the basis of oral and documentary evidence placed before it as to whether it is proved beyond reasonable doubt that the accused Nos.1 and 2 have committed the offence punishable under Section 338 r/w. Section 34 of IPC. The said judgment of the Hon'ble High Court of Karnataka has not convicted the accused Nos.1 and 2. Here itself it is pertinent to note that the appellants herein having been aggrieved by the order passed by the trial court and Fast Track Court wherein the accused No.3 was discharged for the offence punishable under Sections 322, 323 and 338 r/w. Section 34 of IPC, Crl.Appeal No.626/2020 10 Further the order of the learned I ACMM, Bengaluru regarding framing of accusation under Section 322 r/w. 323 of IPC against the accused Nos.1 and 2 was set aside by FTC No.6 in Crl.R.P.No.509/2008. Hence, it can be safely said that the order/judgment of the Hon'ble High Court of Karnataka is pertaining to discharge of the accused No.1 and the order of the learned Magistrate regarding framing of accusation under Section 338 r/w. Section 34 of IPC against the accused Nos.2 and 3.
14. Further from the reading of the order of the Hon'ble High Court of Karnataka in Crl. Petition No.2739/2010, it is evident that it was preferred at the initial stage of framing of charge. Hence the said order of the Hon'ble High Court of Karnataka has nowhere held that the accused Nos.2 and 3 are guilty, but has specifically observed that they have to face trial under Section 338 r/w. Section 34 of IPC.
15. Here itself, it is necessary to refer to Section 338 of IPC, which reads as under :
338. Causing grievous hurt by act endangering life or personal safety of others. Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which Crl.Appeal No.626/2020 11 may extend to two years, or with fine which may extend to one thousand rupees, or with both."
16. Admittedly the accused No.1 was a Gynecologist and Obstetrician in Brindavan Nursing Home. The complainant No.1 was admitted for her delivery and the delivery was taken place under the process of Forceps delivery. It is alleged that due to the negligence of the accused No.1, she applied more force in fulling the baby, resulting which the baby (complainant No.3) suffered from shoulder dystopia, thereby her left hand suffered from ERBSPALSY.
17. Further the allegation against the accused No.2 is that he being the owner of Brindan Nursing Home allowed the accused No.1 to practice as a doctor in their hospital.
18. . In view of the case of the complainant, the accused No.2 is the owner of the Nursing Home, but nowhere it is stated about the role played by accused No.2 at the time of delivery of complainant No.1. In this regard, the learned Magistrate has rightly observed that "Merely the accused No.2 has provided a place to accused No.1 to practice and allowed her patient to admit in his Nursing Home, it cannot be said that both were joining together in order Crl.Appeal No.626/2020 12 to commit crime. Nowhere in the complaint as well as in the evidence, role of accused No.2 is stated. Therefore, Section 34 of IPC does not attract to the accused No.2".
19. In the present case, the complainant has examined Dr.Arathi Prasad as P.W.3. She has deposed about the examination of the complainant No.3 i.e., daughter of complainant Nos.1 and 2. She has stated that in the month of December 2001 the child was brought to her hospital as there was no proper movement of left upper arm of the said child since its birth, accordingly, she examined and found that muscles in the left upper arm were not properly working and due to which movement of the left upper arm was incomplete. She further deposed that the complainants had brought the 5 months old baby in the month of December 2001. She further deposed that the problems suffered by the complainant No.3 can be caused due to mishandling of child at the time of delivery by the doctor or the person who attended the pregnant lady. She further deposed that such a kind of problem would crop up in case Forceps delivery. She further deposed that the muscles of the left upper arm had become weak due to some injury to the Branchailplexuseo. She further deposed that on account of delay in consulting a Physiotherapist, there Crl.Appeal No.626/2020 13 is a problem in growth of left upper arm bones, this could have been avoided if the child was immediately taken to Physiotherapist soon after the problem was known. In her cross examination, she has admitted that she is not a Medical Practitioner, but she being a Physiotherapist can be called as Para Medical Practitioner. She has not conducted any delivery and has not studied any topic in respect of Gynecology and Obstetrician while she was pursing BPT course. She further admitted that she cannot give her opinion in respect of Gynecologist and Obstetrician issue.
20. P.W.4 is the child (complainant No.3) who has suffered physically due to the Forceps delivery.
21. P.W.2 is the mother who delivered the child. In her evidence she has stated that after delivery, the accused No.1 told that it will become alright after 10-15 days. Dr.Shankar Hegde had also given treatment and he had informed that the problems of the child will be alright within 10-15 days. Further she has deposed that after 5 months, the said Dr.Shankar Hegde told to her that Physiotherapist by name Arathi Prasad. Accordingly she went to Dr.Arathi Prasad and the Doctor had told her that if she approached her within 10-15 days from the date of the delivery, the problem of her daughter would have been cured and then started to Crl.Appeal No.626/2020 14 give Physiotherapy. Further she has stated that she has also taken her daughter to Ayurvedic, Homeopathi, etc. In her cross examination, it is elicited that at the time of delivery, the accused No.2-Dr.Rajalakshmi was all along present with her since pain started to her till delivery. At the time of delivery, she was under semi conscious. She does not know as to whether she was unable to push the child at the time of delivery, so also she does not know as to whether the baby's body partly come out and it was stuck at the time of delivery. Further it is elicited that she was not knowing as to whether the accused No.2-Dr.Rajalakshmi was forced to take use of Forceps to get the baby out in order to save the body. It is further elicited that there was no intention with the Doctors to damage the hand of her child before her delivery. Further she has denied that without following the advise given by the Doctors, she herself caused negligence for the non-improvement of the left hand of her daughter.
22. Further Dr.Rajalakshmi has got herself examined as D.W.1. She has stated in her examination in chief that she is practicing from 36 years as a Gynecologist and Obstetrician. As a Gynecologist and Obstetrician, she used to conduct 30-35 deliveries in a month. The complainant No.1 was admitted to the Nursing Home of the accused No.1 on 5.08.2001 at about 4-00 a.m., and Crl.Appeal No.626/2020 15 on receiving the phone call, she went to the said Nursing Home and taking care of her. She has further stated that on the same day at about 4-30 a.m., the complainant No.1 complained about severe delivery pain, so she came to the conclusion that she is ready to deliver the baby. Accordingly she was giving instructions which are necessary for natural delivery and in the meantime, she had also put drips and she was observing the fetal while following her instructions between 6-00 to 6-30 a.m., the complainant No.1 became unconscious and failed to follow her instructions. At the same time, the baby came out and got stuck in the fetal outlet, she observed that the fetal monitor displayed the heart beat of the child coming down, so she being an expert arrived a conclusion that within 10 minutes, the baby should come out, failing which there would be serious danger to the mother as well as baby. Accordingly, she conducted Forceps delivery and the said delivery was conducted with the assistance of instruments in the said emergency circumstances. The delivery by way of Forceps has become common and it is universally accepted process in the medical field. Further she has stated that ERBSPALSY is a weakness of nerves. In respect of the above, on the date of delivery itself, she has mentioned the same and the said ERBSPALSY would not occur because of the delivery by the process of Forceps, it Crl.Appeal No.626/2020 16 was caused to Shoulder Dystocia. Further she has explained the Shoulder Dystocia which means that when the baby while coming out of the womb got stuck in pelvic outlet, the neck portion would be expanded and had taken twist, at that time due to force on the nerves Shoulder Dystocia would be caused and for that reason ERBSPALSY would be caused. She has further deposed that the said fact would not come to her knowledge from outside, but she can observe the problem through the fetal monitor. As such, without any alternative she has conducted Forceps delivery. If the Forceps delivery was not conducted, there would have been lack of supply of oxygen and also supply of blood to baby and there would be every chance of death of the child and such situation may lead to the baby becoming mentally retorted. Further she has stated that if the Forceps delivery was not conducted, the mother would have sustained injury to the urinary bladder, rectal injury, bleeding and it would lead to infection and there would be a chance of mother's death. In such circumstances i.e., when the baby coming out of the womb and stuck in pelvis outlet, no Cesarean surgery could be conducted to remove the child. She has further deposed that soon after delivery, she intimated about the ERBSPALSY and also delivery conducted by Forceps to the complainant No.2 and same was also mentioned in the observation sheets.
Crl.Appeal No.626/2020 17 She has also advised the complainant no.1 to contact Pediatrician and take advice about the ERBSPALSY of complainant No.3 and also advised to go for some exercise. She has further deposed that within 6 months from the date of delivery, if the complainant Nos.1 and 2 would have followed the instructions given by her and Paediatrician, definitely there would be a 96% chance of cure. She has further deposed that as a dutiful doctor, she has taken all the precautionary measures and delivered the bay and she has not shown any negligence while discharging her duty.
In her cross examination, it is elicited that she has not produced the case sheet in respect of the hospital i.e., Brindan Nursing Home. It is elicited that when the complainant No.3 was in the Nursing Home, she has given advice for range of movements and then sent the baby to one Dr.Shankar Hegde, Paediatrician and claimed ignorance about the advice given by him. On the question regarding whatever the disability caused to the complainant No.3 is permanent disability, for that Physiotherapy and surgery can also be done, the witness volunteers and stated that there is no guarantee to cure the problem of complainant No.3. She has denied the suggestion that when the complainant went unconscious, the child would have taken out by doing Cesarean. She has admitted that on the basis of scanning report, she being a doctor, she Crl.Appeal No.626/2020 18 can take decision or arrive at a conclusion whether the patient can have normal delivery or Cesarean. She has denied that she is deposing falsely that the complainant No.3 came out from womb and got stuck in the pelvic outlet. When she was questioned as to whether at the time of conducting Forceps, she has to take permission of the husband of complainant No.1 or relatives, she has deposed that at the time of admission, same was taken and further in an emergency, at the time of conducting Forceps, she need not take such consent. She has denied the suggestion that because of delivery conducted by way of Forceps, the disability was caused to the complainant No.3. It is elicited that when baby was stuck in pelvic outlet, she may not be aware which delivery she is going to conduct.
23. Admittedly the complainant No.1 was following the instructions of the accused No.1 for delivery. Between 6-00 to 6-30 a.m., the complainant No.1 was went unconscious state and failed to follow the instructions of the accused No.1 and at the same time the baby came out and got stuck in the pelvic outlet and baby heart beat was coming down. As the baby had to come out within 10 minutes, if not there was severe danger to the baby and mother, so the accused No.1 conducted the Forceps delivery. In this regard, the complainants have contended that the accused should Crl.Appeal No.626/2020 19 have conducted Cesarean instead of Forceps delivery. As per the medical literature, the doctor and the parent should decide upon the nature of delivery as to whether it has to be normal delivery or Cesarean delivery. Further if the doctor is of the considered opinion that it is not possible to conduct normal delivery, then she has to intimate the same to the family of the patient and obtain consent for Cesarean delivery. But once the doctor proceeds with the normal delivery and when the baby is being pulled out and if it get stuck, then at that stage the doctor cannot shift to Cesarean delivery where the procedure is totally different.
24. Further, according to the some medical literature produced by the complainants under the chapter Operative Vaginal Delivery, it says "the proper use of Forceps or Vaccum extractors remains a safe and effective technique for achieving the universal goal of a healthy mother and baby. Although there is a periodic and vocal demand to delete assisted vaginal delivery, clinical experience provides recurring evidence that living all to natural forces or scalpel will not accomplish this goal. (American College of Obstetrician Gynecologist, 1994 Robinson 1994) when criteria for outlet Forceps are meet, and there is a significance abnormality of the foetal heart rate, Crl.Appeal No.626/2020 20 there is no question that assisted or operative vaginal delivery is indicated".
25. In the present case, the accused No.1 under compelling circumstances with an intention to protect the lives of mother and child has adopted the Forceps delivery procedure.
26. It is the contention of the appellants that the accused No.1 has not taken the consent of the husband or relative of the complainant No.2 before proceeding with the surgery. In this regard, he has relied upon the decision of the Hon'ble Supreme Court reported in AIR 2008 SC 1389 between Sameera Kohli .Vs. Prabha Manchan & Others) wherein it is held as under :
"Before performing an operation the Physician should obtain in writing the consent from the husband or wife, parent, guardian in case of minor, or the patient himself as the case may be. In an operation which may result in sterility the consent of both husband and wife is needed".
27. In this regard, the learned Magistrate has rightly observed that the said ruling is not applicable to the present case on hand. Further the learned Magistrate has rightly observed that "Forceps delivery is not a Crl.Appeal No.626/2020 21 surgery, but a Forceps instrument used for delivery in order to safeguard the baby and mother. As such observed that the case relied by the complainants is not applicable, since it is not a case of surgery". Also it is elicited in the cross examination of D.W.1 that consent was taken before delivery, but not for Forceps delivery.
28. Further the learned Magistrate has rightly observed that "the P.W.3 is only a Physiotherapist and she cannot call herself as a Doctor and she cannot put prefix as Doctor in her name and as argued by the defense counsel, she can be called as Paramedical Practitioner. Therefore, no value could be attached to the evidence of P.W.3". Here itself, it is pertinent to note that even after lapse of time, the complainants have chosen not to examine any expert from the field of Gynecology and Obstetrician.
29. The learned Magistrate has rightly observed in para No.39 that "the Forceps delivery is not a surgery, it is one of the process of the delivery in a complication stage. Now the court has to consider is there is any chance of ERBSPALSY at the time of normal delivery or not. Some medical literature says that even at the time of normal delivery, ERBSPALSY would have occurred and Crl.Appeal No.626/2020 22 the treatment has been take within the prescribed time, it is a curable. When such is the situation, in the present case the complainant No.1 was capable of normal delivery and she was following all the instructions given by the accused No.1 who was present till delivery and when the baby come out from the womb and stuck in the pelvic outlet and at the same time, in a foetal monitor, the heart beat was coming down, naturally the accused No.1 being a dutiful doctor having experience in order to overcome the danger to mother as well as baby, she has conducted Forceps delivery which is universally accepted one. Whatever the procedure adopted by the accused No.1 at that point of time is not correct has to be established by examining one more expert having similar qualification or more.
Here, except the evidence of P.W.3- Physiotherapist, no other competent
witnesses/expert witness has not been examined. Under such circumstances, absolute negligence cannot be attributed on the accused No.1".
30. Further The Hon'ble Supreme Court in the decision reported in (2005) 6 SC 1 ( Jacob Mathew .Vs. State of Punjab and another), has held as under :
Crl.Appeal No.626/2020 23 In order to attract medical negligence on part of the doctor the following ingredients/guidelines has to be satisfied by the complainants :
1) Negligence is breach of a duty caused by omission to do something which a reasonable man guided by those consideration which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not to do. The definition of negligence as given in law of torts, Rathanlal and Dheeranlal, referred to hereinabove holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributed to the person sued. The essential components of negligence are three duty, breach and resulting damage.
2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on 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 part of a medical professional. So long as a doctor follows a practice acceptable to the Crl.Appeal No.626/2020 24 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 the 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 a man 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 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 (that is, the time of incident) at which it is suggested it should have been used.
3) 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 possessed to have possessed, or he did not exercise, Crl.Appeal No.626/2020 25 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 possible for every professional to possess the highest level of expertise or skills in that 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.
4) The test for determining medical negligence as laid down in Bolam's case (1957) 1 W.L.R.582, 586 holds good in its applicability in India.
5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e., gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil Crl.Appeal No.626/2020 26 law but cannot form the basis for prosecution.
6) The word 'gross' has not been used in Section 304A of IPC, yet 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 304A of the IPC has to be read as qualified by the word 'grossly'.
7) 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.
8) Res Ipsa Loquitur is only a rule of evidence and operates in the domain of civil law specially in case of starts and helps in determining the owners of proof in actions relating to negligence.
It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. ResIpsa Loquitur has, if at all, a limited application in trial on a charge of criminal negligence.
Crl.Appeal No.626/2020 27
31. Now the court has to consider under the above guidelines of the Hon'ble Supreme Court, the complainant has proved their case. On analysing the overall evidence of the complainant from the date of admission on 5.08.2003 at about 4.00 am., till delivery the accused No.1 was all along present and provided all the medical aid to the complainant No.1. Further when a case has went to the critical stage, she being an expert doctor in the subject she decided to deliver the baby by way of Forceps and accordingly she did it. Nowhere the complainant established before the court Forceps is not a universally accepted procedure for delivery. Further, it is not the case of the complainant that the accused No.1 is not possessed requisite qualification/skills to do a practice of Gynecology and Obstetrician.
32. In view of the discussion made supra, it is observed that the learned Magistrate has rightly observed that when admittedly the case sheet is not furnished, but taking note that Brindan Nursing Home has been closed since 2009. under such circumstances the complainants who have approached the court should take necessary medical documents from the said hospital and produce it before the court, because it is for them to prove their case. Non-furnishing of the case sheet by the accused No.1 is in noway helpful to the Crl.Appeal No.626/2020 28 complainants. The learned Magistrate has rightly observed that it is not the contention of the complainants that they approached Brindavan Nursing Home and they were refused to give them the medical documents.
33. Further the learned Magistrate has rightly observed that no doubt the complainant No.3 is suffering from permanent disability on her left hand which was caused during delivery. But the complainant has failed to prove that it was caused due to the Forceps delivery. The parents of the complainant No.3 i.e., the complainant Nos.1 and 2 were equally negligent as they did not immediately go to the Pediatrician for treatment. It is also rightly observed that the complainants have not produced any material to show that after discharge from the Brindavan Nursing Home, what are all the follow up treatment, they have provided to the complainant No.3 . The complainant Nos.1 and 2 contacted P.W.3-Arathi Prasad, Physiotherapist after lapse of 5 months. According to the version of accused No.1 as well as the P.W.3, if the proper treatment was taken within reasonable time i.e., 10-15 days of delivery, definitely that disability would have been cured at the initial stage itself. Under such circumstances, accused No.1 and 2 are not responsible for the disability caused to complainant No.3. In this Crl.Appeal No.626/2020 29 regard, the evidence of victim/ PW 4 is not helpful, because she has taken those certificates very recently to produce before the court for the purpose of studies and getting benefit from the Government, those documents are not helpful to the complainant to prove the negligent act of the accused Nos.1 and 2. Thus, the complainants have failed to prove the guilt against the accused No.1 and 2 beyond all reasonable doubts.
34. In view of the discussion made supra, the judgment and order passed by the learned Magistrate does not call for any interference. The appellants have not made out any grounds to interfere with the impugned passed by the trial court. Accordingly, the Point No.1 is answered in the Negative.
35. POINT No.2 : My finding on this point is as per following :
ORDER The Crl. Appeal filed by the appellant is hereby dismissed. Consequently, the impugned judgment passed by the learned XXIV Addl. C.M.M., Bengaluru in C.C.No.2794/2002, dated:28.05.2020 stands confirmed.
Crl.Appeal No.626/2020 30 Send back the records to the trial court along with the copy of this judgment.
(Dictated to then Stenographer Grade-II directly on computer, corrected, signed and then pronounced by me in the open court on this the 15 th day of November 2025) (RASHMI.M) LXVII Addl.City Civil & Sessions Judge, BENGALURU.
Digitally signed by RASHMI RASHMI M Date:
M 2025.11.15
17:31:22
+0530