Delhi District Court
State vs . Dr. Anil Handa & Ors. on 14 March, 2023
IN THE COURT OF MR. VAIBHAV CHAURASIA
METROPOLITAN MAGISTRATE-04: NORTH WEST
DISTRICT ROHINI COURTS: NEW DELHI
FIR No. 615/2004
State Vs. Dr. Anil Handa & Ors.
PS Mangol Puri
U/s 304-A IPC
Date of Institution : 05.03.2007
Date of Judgment : 14.03.2023
JUDGMENT
S. HEADING PAGE
No. NO(s)
(A) BRIEF FACTS 3-8
(B) NOTICE / CHARGE 8-10
(C) ADENOIDITIS AND ADENOIDECTOMY 10-12
(D) THE OPERATION OF ADENOIDECTOMY 12-15
(E) PROSECUTION EVIDENCE 15-81
(F) STATEMENT OF ACCUSED 81-100
(G) DEFENCE EVIDENCE 100-108
APPRECIATION OF LAW AND EVIDENCE 108-290
(H) LAW ON NEGLIGENCE 108-112
(I) SECTION 304A IPC AND MEDICAL NEGLIGENCE VIS-A- 112-148 VIS CRIMINAL LIABILITY (J) LEGAL OBJECTIONS ON BEHALF OF ACCUSED NO. 2 & 3 148-164 (K) PRE-OPERATIVE STAGE 165-183 (L) INTRA-OPERATIVE STAGE 183-192 (M) POST-OPERATIVE STAGE 192-200 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 1 of 345 (N) POSTMORTEM AND ALLIED ISSUES 200-260 (O) APPRECIATION OF DEFENCE EVIDENCE 260-286 (P) ARGUMENT ON BEHALF OF THE COMPLAINANT OVER 286-292 BURDEN OF PROOF AND RES IPSA LOQUITUR (Q) CONCLUSION 292-345 (1) Serial number of the case : 528685/2016 (2) Name of the complainant : Sh. Karamvir Singh S/o.: Raghunath Singh R/o.: House No. 179, Swastik Kunj, Sector-13, Rohini, Delhi.
(3) Name of the accused : 1. Dr. Anil Handa S/o M.L. Handa R/o: 41-B-J D Block, Pitam Pitam Pura, Delhi.
2. Dr. Ravinder Kumar Gupta S/o Late Dr. Srikrishnan, R/o: C-15, Pushpanjali Enclave, Pitam Pura, Delhi.
3. Dr. Vivek Kumar Mangla S/o Sh. Prem Narayan, R/o: C-2/11, West Enclave, Pitam Pura, Delhi.
(4) Offence complained of / : U/s 304-A Indian Penal Code, proved 1860 (5) Plea of the accused : Pleaded not guilty (6) Final Order : Acquittal Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 2 of 345 (7) Reserved for judgment on : 14.03.2023 BRIEF STATEMENT OF THE REASONS FOR THE DECISION BRIEF FACTS:
1. Verses of glory would have sailed to the remotest corner of the country had Master Komal Khatri, who already had bagged laurels at the tender age of 12 with twenty shiny Gold, nine glittery Silver and one Bronze, that too not only on national but also on international soil, had he not met with cruel fate where he breathed his last at the alleged skilful hands of ENT Surgeon claiming to have undertaken thousands of Adenoidectomy and gold medallist Anaesthetist and Director of Balaji Hospital Administration and alleged negligence on their part and they are being prosecuted herein with the Court at hand to decide whether their degree of skilfulness was adequate to absolve them of gross negligence or to indict them for their goings on.
2. Uncontroversial are the facts to the extent that deceased Master Komal Khatri was suffering from breathing problem to which his parents approached Apollo Hospital wherein he was diagnosed with disease adenoids and was advised adenoidectomy soliciting under general anaesthesia. Requisite test were undertaken at the Apollo Hospital for conducting the Surgery. Thereafter the father of the deceased, Mr. Karambir Khatri, who is complainant herein had approached accused no. 1 Dr. Anil Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 3 of 345 Handa on 11.09.2004 wherein the accused no. 1 had advised for x-ray report of the nose of the deceased and after the confirmation of the disease, adenoidectomy was confirmed as per accused no. 1. Thereafter, operation was scheduled on 30.09.2004. The deceased along with his parents reached Balaji Hospital at 6:30 AM on 30.09.2004 wherein accused no. 1 Dr. Anil Handa (E.N.T. Surgeon) along with accused no. 3, Dr. Vivek Mangla (Anaesthetist) operated upon master Komal Khatri and the child breathed his last on 30.09.2004. After the child has expired, the complainant herein lodged a complaint stating negligence on the part of the doctors as well as the hospital administration (which included all the accused herein), pursuant to which the post-mortem report was prepared by a panel of three doctors who stated cause of death as "Asphyxia consequent to chocking of the wind-pipe by blood and blood clots aspirated as a result of bleeding from the raw area of naso-pharynx done by surgical intervention. Raw area of Naso-pharynx is ante-mortem in nature. No evidence of disease except this raw area according to PM findings." and upon the inquisition of the IO over the negligence, opined under their signatures that "error of preoperative diagnosis and subsequent post management by the Surgeon and the Anaesthetist (as evident by their statement (written) in which they have agreed that the special investigation like CT Scan, MRI, Angiography is not done in this case), cannot be ruled out; vicarious liability of the Balaji Hospital in our view stands; and post-mortem findings are consistent with lack of adequate care timely by Surgeon and Anaesthetist, is suggestive which resulted into death of the child (deceased) as mentioned Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 4 of 345 on page ante", leading thereto registration of FIR under Section 304 and 34 of Indian Penal Code, 1860 (hereinafter referred to as IPC) with PS Mangolpuri on 06.10.2004.
3. Since the offence was non-bailable and exclusively triable by Court of Session, all the accused herein had secured anticipatory bail from Ld. ASJ and in particular accused no. 1 and accused no. 2 secured it on 08.10.2004 and accused no. 3 had secured it on 25.10.2004 and they were duly arrested on 9.12.2004, 28.12.2004 and 04.01.2005 respectively and were released thereof on furnishing mandated bail bonds. After due investigation, the charge sheet was filed was filed on 30.04.2007 under Section 304/34 IPC. Cognizance of offence was taken and since the offence was exclusively triable by the Court of Session, same was committed and arguments on charge were heard wherein by the separate detailed order dated 04.03.2008, with observation that "in our system the crucial proof of negligence in fatal cases hardly comes for professional analysis on public forum as the "Cause of Death" merely remains academic and on the professional front, none appears to be interested to expose the deficiencies in order to safeguard their own interest. The cases do come up at times after the crucial evidence by way of Post Mortem report is not available, as it is too late by the time the sufferers realise that there may have been medical negligence. The decision in all the more difficult in case of child death cases as the individuals in our system are still resistant to go for postmortem of their kiths and kin unless fully convinced of negligence. It was further observed 'that no doubt that a Surgeon Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 5 of 345 may not be able to carry an operation with shivering hands, in case a sword of criminal prosecution hangs over his head in the event of failure, but at the same time it requires to be balanced by ensuring that basic norms and precautions need to be followed. Even if it is accepted for sake of arguments that there was no preoperative negligence by way of not adhering to special investigations like CT Scan, MRI etc. as pointed in postmortem report, the operative and/or post operative negligence is adversely reflected against the accused. According to PM report, cause of death is Asphyxia consequent to chocking of the wind-pipe by blood and blood clots aspirated as a result of bleeding from the raw area of naso-pharynx done by surgical intervention. This clearly reflects that the bleeding continued during or after the surgery which resulted in the chocking of wind pipe. The observations of Medical Board as referred in its report dated 14.10.2004 also reiterates the same. As per FIR, even after the operation the child was unconscious and even after two hours when the child did not attain the consciousness, the doctor and the staff left the child unattended. The opinion given by the doctors cannot be considered to be biased as it consisted of independent doctors who had no prejudice or bias in favour of either of the parties. Merely because a favourable opinion has been obtained or given by the Delhi Medical Council is no ground to set aside the observations of an independent medical board. Another circumstance appearing against the accused is the time since death which has been opined to be 32 hours in the post mortem report which was commenced about 5.30 p.m. on 01.10.2004. The death of deceased as per accused Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 6 of 345 occurred at about 11.30 a.m. on 30.09.2004. If the time is proportionately reduced, the death may have been around 9.30 a.m. However, since the post mortem had been completed about 6.45 p.m., an ambiguity exists whether the time since death has been calculated vis-a-vis the starting time of the postmortem or the completion time of the postmortem which may also have a substantial impact on the course of proceedings and estimating the time of death. Further the patient has been indicated to be conscious as 12.30 p.m. though the deceased was declared dead about 11.35 a.m therefore all the three accused are liable to be charged for criminal negligence u/s 304A r/w section 34 IPC and observing that entire reading of the prosecution case does not disclose ingredients for commission of offence U/S 304 IPC (Culpable homicide not amounting to murder) as the accused did not have any intention or knowledge that the Surgery was likely to result in death. Any attempt to bring the offence under ambit of Section 304 IPC would be far fetched. The registration of case under Section 304 IPC instead of Section 304A IPC appears to be without any legal foundation and shows an unwarranted anxiety of investigating agency too took the offence of negligence under grave sections. There is sufficient evidence on record to proceed against the accused U/s 304A IPC r/w Section 34 IPC at this stage and as such the prayer of the accused for discharge is meritless. And since the offence U/s 304A is triable by Court of MM, the file be forwarded to Ld. ACMM with direction to try the case himself or mark it to the Court of Metropolitan Magistrate of concerned PS for further trial."
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4. Therefore matter was sent forth to Ld. ACMM on 24.03.2008 and it was duly transferred to concerned Magistrate and matter was adjourned for the framing of Notice.
NOTICE / CHARGE
5. Vide order dated 09.09.2008, Notice in the present case was framed and was served on all the accused and it runs as :-
NOTICE It is alleged against you accused 1. Anil Handa, S/o. Sh. M. L. Handa, 2. Dr. Ravinder Kumar Gupta, S/o. Late Shri Krishanan and 3. Dr. Vivek Kumar Mangla, S/o. Prem Narain that on 30/09/2004 between 6:00 am to 11:30 am, at 195, Balaji Hospital, Deepali Enclave, Pitam Pura, Delhi you Dr. Anil Handa, being the Surgeon, Dr. Ravinder Gupta being the Director of Balaji Hospital Pvt. Ltd., and Dr. Vivek Mangla being an expert and anestheticis, omitted to take such care during the operation of Komal Khatri, S/o. Karambir Khatri, a child aged around 12 years, who was admitted in Balaji Hospital with diagnosed case of Adenoid Hyperplasia and was operated upon at the hospital at 6:30 am and expired at about 11:30 am by doing this negligent act, you all caused the death of Komal Khatri not amounting to culpable homicide and thus thereby committed an offence punishable U/s. 304A IPC and within my cognizance.Case No. 528685/2016
FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 8 of 345
6. Pursuant to above notice qua Section 304-A IPC, all the accused persons pleaded not guilty and claimed trial. However application was moved on behalf of accused no. 2 and 3 under Section 216 of Criminal Procedure Code, 1973 (hereinafter referred to as Cr.P.C.) for the reason that Notice framed against them do not fully explains the charges against them. Allowing the said application, my Ld. Predecessor Judge Amended the notice of 09.09.2008 on 19.02.2011 and it is being reproduced here with emphasis supplied :-
AMENDED NOTICE I, Vishal Singh, MM.Rohini, Delhi do hereby serve notice upon you 1. Dr. Anil Handa, S/o. Sh. M. L. Handa 2. Dr. Ravinder Kumar Gupta, S/o. Late Sh. Krishnan, 3 Dr. Vivek Kumar Mangla, S/o. Sh. Prem Narain as under:
It is alleged against you that on 30.09.2004, between 6:00 am and 11:30 am, at 195, Balaji Hospital, Deepali Enclave, Pitam Pura, Delhi, you Dr. Anil Handa being the surgeon, operated upon child master Komal Khatri, aged around 12 years, diagnosed for adenoiditis and operated for adenoidectomy and assisted in such surgery by Dr. Vivek Mangla, being the expert anaesthetist, and under the directorship of Dr. Ravinder Gupta of Balaji Hospital, omitted to take such medical care as to prevent danger or injury to the life of patient child Komal Khatri during the course of the said surgery and after the surgery due to which gross medical negligence on all of your part, child Komal Khatri died (as per Balaji Hospital record), at 11:35 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 9 of 345 am on 30/09/2004 and thus you thereby committed an offence punishable u/s 304A IPC and within my cognizance.
7. Upon the serving of aforesaid notice, all the accused again pleaded not guilty and claimed trial and matter was adjourned for prosecution evidence. Before the Court could delve into the evidence of the prosecution, it is essential to acquaint with the disease and surgical procedure employed.
ADENOIDITIS AND ADENOIDECTOMY
8. According to standard and authentic book on subject generally prescribed for undergraduate level i.e. Logan Turner's Diseases of the Nose throat and Ear1 defines Adenoids as tissue arises from the junction of the roof and posterior wall of the nasopharynx, and is composed of vertical ridges of lymphoid tissue separated by deep clefts. Adenoids are liable to inflammatory changes. Treatment consists of removal of the infected adenoids or adenoid remnants. As to Adenoid Hypertrophy, the enlargement may be simple or inflammatory, and the symptoms may be referable to hypertrophy, to infection or to both. Symptoms includes in infants enlarged adenoids may interfere with feeding, in older children nasal obstruction leads to mouth breathing, the voice loses tone, and becomes nasal and lifeless, and there is nasal discharge. The differential diagnosis may be made by lateral radiography of the nasopharynx, which 1 Tenth Edition, edited by AGD Maran, Jaypee Brothers Publisher & Hodder Arnold, Chapter 4.1, Page 363-371 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 10 of 345 will demonstrate a normal nasal airway in the resting phase, and by the cold spatula test.2 Lateral radiographs of the nasopharynx will demonstrate the presence and size of adenoids. Complications of adenoidectomy involves hypernasality3 and reactionary haemorrhage shows itself shortly after the operation by persistent bleeding from the nose. This does not, as a rule, respond to sedation by diamorphine injection. Very frequently there is a copious vomit containing much fresh blood. The pulse rate increases and the blood pressure drops. Experience shows that the best treatment is to return the child to the theatre where a postnasal pack is inserted under anaesthesia, and is removed on the following morning, again under anaesthesia. If blood loss is severe or prolonged before being controlled a blood transfusion will be required. Secondary haemorrhage from the adenoid bed may occur, although uncommonly, 4-10 days after the operation.
9. According to standard and authentic book on subject generally prescribed for postgraduate level i.e. Scott-Brown's Otolaryngology4 which states as when considering diseases of the adenoids it is as well to remember that the mass of lymphoid tissue in the nasopharynx generally referred to as th adenoids is a normal structure with a definite function, namely the production of antibodies (IgA locally, and IgG and IgM systemically). It is the size of the adenoids relative to the nasopharynx that may be important, rather than the actual size. The effects of such 2 to rule out any other disease.
3 Not relevant for our purpose as in this case the allegations are as to bleeding which led to the chocking of windpipe leading to Asphyxia. 4 Sixth Edition, Edited By David A. Adams and Michael J. Cinnamond, Volume 6, Chapter 18, Pages 6/18/1 to 6/18/14, published by Butterworth - Heinemann Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 11 of 345 enlargement produce impairment of nasal respiration and possible obstruction of the eustachian tube openings. The most reliable way of assessing the size of the adenoids is to take a lateral radiograph. This will give a measure of the absolute size of the adenoids and also an assessment of the relation to the size of the airway (Hibbert and Whitehouse, 1978; Maw, Jeans and Fernando 1981; Cohen and Konak, 1985). In an individual child with nasal obstruction, this is the best method of assessing whether adenoidectomy will improve the symptom. The indications for adenoidectomy included Nasal obstruction, Otitis media with effusion, Recurrent acute otitis media Sleep apnoea and Contraindications to adenoidectomy were listed as Recent upper respiratory tract infection, Bleeding, Cleft palate THE OPERATION OF ADENOIDECTOMY5
10. This operation is by no means a minor procedure. Far from being an afterthought following tonsillectomy it should be regarded as a major surgical procedure with significant risks and complications. For example 60-70% of the blood loss during tonsillectomy and adenoidectomy is due to the adenoidectomy and control of excessive bleeding following adenoidectomy is more difficult than after tonsillectomy. The preoperative considerations and preparation of a child for adenoidectomy are identical to those for tonsillectomy. The anaesthesia is also the same using an endotracheal tube which is stabilized in a Doughty blade using a Boyle-Davies gag. When performing tonsillectomy and adenoidectomy it is usual to extend the neck of the patient 5 Ibid, Page 6/18/12 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 12 of 345 using a sandbag under the shoulders of the child. This accentuates the curvature of the cervical spine and probably makes a complete adenoidectomy more difficult. A more neutral position of the neck, neither flexed nor extended may be preferable. The adenoids are palpated with an index finger and it is important that the soft palate is relaxed during this manoeuvre or it will be torn. It is usual to dissect, using the finger, the lateral extension of the adenoids towards the midline. A St Clair Thomson curette is then inserted into the nasopharynx, gently positioned against the posterior surface of the nasal septum and swept downwards (Figures 18.11 and 18.12).
11. 11. It is important to select a curette of the correct size. Too large a curette will damage the Eustachian cushions and one which is too small will mean that the adenoidectomy is incomplete. As the main mass of adenoids is curetted, the blade of the curette is brought forwards to avoid running it down the posterior pharyngeal wall and stripping the mucosa. On occasions the adenoid mass remains attached by mucosal strands Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 13 of 345 inferiorly. These should be avulsed using Luc's forceps, but the direction of avulsion should be cranial, otherwise the mucosa of the posterior pharyngeal wall will be stripped. The nasopharynx is palpated and any adenoidal remnants are curetted. A pack is then placed in the nasopharynx to help haemostasis. Modifications of this adenoidectomy technique are numerous. Inspection of the nasopharynx with a mirror and removal of remnants of lymphoid tissue have been advocated (Sheridan, 1951). A fundamentally different approach is direct adenoidectomy in which the soft palate is retracted and the adenoids removed under direct vision using punches forceps and scissors (Guggenheim, 1957). If bleeding continues after removal of the pack a second pack should be inserted and left for a further 5 minutes. If bleeding still continues mirror examination of the nasopharynx may reveal a bleeding point which can be cauterized or an adenoid tag which can be removed. If at this point bleeding continues some surgeons will resort to the use of topical adrenalin (1:1000) on a swab and others will insert a postnasal pack to remain for 24 hours. There must be absolutely no bleeding from the nasopharynx before anaesthesia is terminated. Complications of adenoidectomy have been stated as Excessive haemorrhage, Surgical trauma and upon speech.
12. The preoperative considerations and preparation of a child for adenoidectomy are identical to those for tonsillectomy 6. Therefore the postoperative care of a child undergoing tonsillectomy is of critical importance. The position immediately following extubation should be such that if any bleeding does 6 Ibid. Since site of operation remains materially the same, the pre-operative and post- operative care in adenoidectomy remains similar to tonsillectomy.
Case No. 528685/2016FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 14 of 345 occur the blood will run out of the mouth and nose and not into an unprotected larynx. Thus the child should lie on the side with the head below the level of the shoulders. The postoperative observations include regular recording of the pulse rate (every 15 minutes for the first 2 hours, every 30 minutes for the next 2 hours and hourly thereafter) and close observation of the child's breathing pattern. A semi-conscious child with blood in the pharynx will always make an audible noise on respiration and this should also be an indication to examine the child's pharynx for haemorrhage. Excessive swallowing or vomiting of blood is a sign that bleeding has occurred and here again the pharynx should be examined. A rapidly rising pulse rate with a child looking increasingly grey in colour is also an indication that haemorrhage is occurring.
PROSECUTION EVIDENCE
13. Prosecution had examined 21 witnesses. Though in chargesheet, 24 witnesses were cited, however three of the witnesses i.e Sh. Naresh Pratap Singh, Ct. Kamal Singh and Inspector Gurmeet Singh were duly dropped.
14. PW-1 Dr. K. Goel, CMO Aruna Asaf Ali Govt. Hospital, Rajpur Road, Delhi deposed that on 01.10.2004 he was posted and was working in the department of Mortuary Subzi Mandi, Delhi. On that day, post mortem examination on the dead body of deceased Komal Khatri aged about 12 yrs., was conducted by the board of doctors including Dr. K.L. Sharma, Dr. Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 15 of 345 V.K. Jha and himself. The medical board was constituted by the Principal Secretary (Health) GNCT, Delhi vide order no. F- 342/114/2004-H&FW dt. 01.10.2004. The dead body was sent by SI Shree Ram, PS Mangolpuri with alleged history of sudden death followed by an operation of naso-pharynx on dt. 30.09.2004 and the death was declared at 11.35 a.m on the same day by Sh. Balaji Hospital, Pvt. Ltd. The family member had alleged the death due to medical negligence and after conducting the post-mortem, a joint detailed report was prepared and same is on record which is Ex. PW1/A, wherein it is specifically mentioned about the cause of death was "Asphyxia consequent to choking of wind pipe by blood and clots, aspirated as a result of bleeding from the raw area of naso-pharynx done by surgical intervention. Raw area of nasopharynx were ante-mortem in nature. No evidence of disease except that raw area according to post mortem findings". The time since death was about 32 hours The blood and viscera were preserved in three jars including brain & lungs in common salt to rule out overdose of anaesthesia. The post-mortem was conducted at mortuary of SGM Hospital and after that when some inquiries were asked by the IO about said examination and the members of medical board including himself answered the same as mentioned on the back side of the said PM report i.e. Ex.PW1/B and bears his seal and signatures at point A. Witness was cross-examined by Sh. Sunil Ahuja, Ld Counsel for accused no. 1, Dr. Anil Handa, wherein he deposed that he did not possess post graduate qualification in ENT. He has never worked as an ENT specialist in any of the hospital. He had completed his job about 15 years as medical officer.
Case No. 528685/2016FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 16 of 345 Practically he had no experience for conducting adenoid surgery. He further deposed that he was aware that the present case was of alleged history of adenoid surgery and they had seen 35 papers plus two X-rays films before they conducted the postmortem on 01.10.2004. He had initialed each of the 35 papers they had seen on 01.10.04. The witness had seen the documents and he stated that all those 35 papers were initialed by him as well as other doctors. On being asked that did the board asked for the comments from the doctors, who had conducted the surgery at Balaji Hospital on the body of deceased Komal Khatri before postmortem to which he replied in negative. He admitted that the requisition of Dr. K.L. Sharma asking for the CT Scan and Angiography was initialed by him at the time of the inquest. Again said, after postmortem, initials were done on the inquest papers. He deposed that since he had signed the requisition, he must have seen the papers. He have seen Ex.PW1/DA in which they had received 35 plus 2 x-rays on 01.10.2004 from SI Shree Ram. He did not know if the Delhi Medical Council had taken up that case and he did not have any knowledge about the conclusion drawn by Delhi Medical Council. Witness was questioned 'Is it correct that histopathology is the ultimate test for the diagnosis of the disease?' to which he answered that not always. In the present case, they had not called for requisition for biopsy report and volunteered as per the record the CT report and the Angiography report were demanded. He could not recollect the time i.e. whether at the time of conducting postmortem they had come to know that the tissue of the deceased have been sent for biopsy. The witness had seen the record and he stated that Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 17 of 345 Balaji hospital had informed that the tissue had been sent for examination to the lab and can be collected from the Balaji Hospital on 05.10.2004 along with the tissue. He could not recollect if they had seen the medical history of record of the deceased that was prepared at Apollo Hospital for his treatment before he came to the Balaji Hospital. The witness had seen the record and he stated that he had seen the medical record of the deceased of Apollo Hospital. He could say that document Mark A was of Apollo Hospital but he can not say about the annexed documents Mark B & C. Witness was questioned 'Would you agree with any author or a medical expert who says that the Biopsy (Histopathology) is the most accurate test for the diagnosis?' to which he replied that Biopsy test is not the ultimate test for all the diseases. He did not agree with the part documents shown to him. The witness stated that he would not refer to the medical journals / articles shown to him in the Court until the complete literature is not shown to him. An article in a medical journal is related to one particular topic and not as a whole literature and may be authentic and may not be. He did not know if the article put to him are authentic or not authentic from Mark A to D. He did not remember if the medical history of the deceased pertaining to the treatment in Apollo Hospital was ever shown to them. The witness had seen the medical history of Apollo Hospital and he stated that he had seen the document Mark E running into four pages which are duly signed by him on the date of postmortem examination. On the basis of documents Mark E, he could not say whether the treatment given in Apollo Hospital that was given to the deceased was right Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 18 of 345 or wrong. The witness had seen page 3 and 4 of document Mark E wherein the surgery advised to the deceased by the Apollo Hospital was adenoidectomy under general anaesthesia. He could not say if adenoidectomy was the appropriate procedure advised by the Apollo Hospital for the above mentioned disease. He could not say whether CT Scan and Angiography was required to be conducted on the patient of adenoid surgery before the operation. The witness had been shown the advise by the Delhi Medical Council through Directorate of Health Services, Govt. of NCT Delhi for guidelines to the Doctors for conducting postmortem in medical negligence cases and the witness replies that he had not come across any such advise which is now Mark F. The injection prick mark over pre-cordial area might be due to resuscitation (life saving process) conducted on the deceased in case of emergency to save the lift of the patient. He cannot answer whether X-Ray was needed or not for adenoid surgery. As per record, the adenoid tissues had been removed from the body of the deceased during the operation of the deceased. There was a raw surface with a small tag of tissue in the naso-pharyngeal area. The tag was so small and could not be retained. The tag was not measurable. They have not sent the tissue for biopsy for the reason mentioned above. As per the medical record, it was mentioned that the tissue removed during surgery was preserved and had been sent for histopathology (biopsy) which could be collected on 05/10/04. No clothes including gown were sealed. Witness was questioned 'Would you agree that bleeding is a known complication of adenoid surgery?' to which he replied that Bleeding is a known complication of adenoid surgery which can Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 19 of 345 easily be controlled by the skilled medical man (doctor). He did not know whether the bleeding develops after two weeks or up to two weeks of the operation. The sub-mucus haemorrhage was not the source of 200 ml blood found in the stomach. The sub-mucus haemorrhages were as a result of asphyxial changes. Hydrochloric acid is the part of gastric juice secreted in the stomach and not the blood. He cannot give the exact quantity of the HCL acid secreted in the stomach. At the time of deposition, he did not know when the postmortem report was collected by the IO. He also did not remember when the postmortem Ex.PW1/A was prepared. He denied to suggestion that his report furnished is incorrect or that he was deposing falsely under the pressure of the superiors. The PM examination started at 5.30 PM and concluded at 6.45 PM. The PM examination can be conducted in late hours in case of some law and order situation or some delay in the constitution of medical board and receiving of the order. He cannot recollect whether there was any law and order problem in that case.
15. Witness PW1 was also cross-examined by Sh. Jeevan Parkash, Ld. Defense Counsel for accused no. 2, Dr. Ravinder Kumar. Gupta and accused no. 3, Dr. Vivek Mangla. Witness was questioned 'Are you of the opinion that the doctors must have got MRI and angiography in the present case before surgery?' to which he replied that he have not opined that the CT scan, MRI and Angiography must be done by the Surgeon and Anaesthetist before the surgery. Witness was questioned 'You have condemned the doctors being negligent for not advising MRI and Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 20 of 345 Angiography and CT Scan as one of the grounds of negligence' to which he replied that he denied to suggestion that he have condemned the doctors. CT Scan, MRI and Angiography, not done, was written by the doctors who treated the patient as stated in the PM report. Witness was questioned 'I put it to you that the statements of the doctors for not conducting MRI and angiography and CT Scan was in reply to the query by the board of postmortem' to which he replied that he sought the reply of the questions vide documents Mark F from the IO. Witness was questioned 'Did you asked the IO vide that letter Mark F to have the statement of the treating doctors in that regard?' to which he replied that the IO was directed to collect the opinion of CT Scan and Angiography, if done and if not done, treating doctors statements may be obtained. Witness was questioned 'Will you please name any medical text book or any medical guidelines which advocates for MRI, Angiography and CT Scan as mandatory standard pre-operative tests in present case for which you are seeking the opinion?' to which he replied that he cannot reply such question. Witness was questioned 'Will you please state your source of knowledge for which you are insisting for MRI, Angiography and CT Scan test reports in the present case?' to which he replied that it is very clear from the page Mark F, they demanded the reports if procedures were done and not insisting for the CT Scan and Angiography and MRI. Witness was questioned 'Do you agree that in the present case aforesaid tests reports were not required or not?' to which he replied that he cannot say whether CT Scan and Angiography was required to be conductive on the patient of adenoid surgery before the Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 21 of 345 operation. Witness was questioned 'Do you agree that non conducting of MRI, CT Scan and Angiography test prior to surgery is not a ground to hold the treating doctors liable for wrong pre-operative diagnosis?' to which he replied that Pre- operative diagnosis is based on multiple factors and these investigations may be part of one of the parts of them. He volunteered that in the present case, the operative and post operative management was very poor as per findings. As per findings in PW report Ex. PW1/A in which massive blood clots and liquid blood was found in the trachea (wind pipe) down up to its division due to excessive haemorrhage from the operative sight which must be controlled to avoid the incident. Witness was questioned 'Can you show either from the treatment record or police report or any complaint of the complainant as to the bleeding from the nose?' Question was objected to on the ground that the same inadmissible and Arguments were heard and record was perused and Question was disallowed as oral testimony of contents of documents cannot be given. At that stage, witness was shown the death report marked as documents Mark 'G` at point A and witness was asked 'what do you say in that report on the comments of the police as to the condition of the cloths, ornaments and body without any mark of the blood'. At that stage, witness had desired to see the postmortem report before answering the question and witness was shown the postmortem report Ex. PW-1/A at point B. He admitted that he had submitted in his report that the hospital gown, scalp, hair, face and both ears were blood smeared and he could not say if the police report on the condition of the body was also the same. At that stage, Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 22 of 345 witness was shown the postmortem report Ex.PW1/A under the point A and was asked 'whether a small tag of tissue was found oozing blood during postmortem even after 32 hours of the death. What you have to say about it?' to which he replied in affirmative. Witness was questioned 'Please state where the blood will go which was found oozing from 32 hours after the death, so found during the postmortem?' to which he replied that after 32 hours of death, the blood clots already formed will ooze the serum which when mixed with the part of clots will give the picture of liquid blood grossly. Witness was questioned 'Do you agree that the blood will go in the airways or the windpipe of the human body and also flow out on the face through nose in the present case and also on the clothes?' to which he replied that such types of liquid (as stated in above question) will move towards the gravity/slopes. Witness was questioned 'you found blood in the wind pipe. was it possible that the blood had moved in the windpipe due to gravity?' to which he denied that he only found blood in the windpipe. There were blood and blood clots alongwith liquid blood found in the windpipe. He opined that clotting of blood is an ante-mortem phenomena and it was obvious that liquid blood mixed with serum after death can move in the windpipe if slop was towards the windpipe. Witness was questioned 'In the postmortem report your observation as to examination of nose and naso-pharynx you have not made any observation about the blood clots. The observation of blood clots was regarding Tracheal/its Divisions?' to which he replied that in postmortem report at point A, the nasal cavity and naso-pharynx area was described at point A in last four lines. They have already Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 23 of 345 described the presence of blood clots in the windpipe deep up to its divisions as marked at point B. Witness was questioned 'Do you agree that in the nose/ nasopharynx there was no blood clot ?' to which he replied that it was already on record that nasal cavity was clear. Nasopharynx area had already been described having small tag which was oozing blood. As per record/report there was no significant blood clot at nasopharynx as they have written raw surface in that area. Witness was questioned 'Did you make any scientific effort to detect whether blood was postmortem or ante-mortem?' to which he replied that the blood clots found in the trachea deep up to its division were ante- mortem in nature and that was the matter of examination grossly and no investigation was required. Witness was questioned 'Are you aware that there is any scientific technique to distinguish between ante-mortem and postmortem bleeding?' to which he replied that he requires time to consult the literature to answer that question. At that stage, witness was shown a document which is hereby marked as Mark H. Witness was questioned 'The document Mark 'H' discloses a scientific method to differentiate between a postmortem and an ante-mortem bleeding / injury. What you have to say?' to which he replied that he was unable to make any comment on the same merely by reading the document Mark H. Witness was questioned 'Please refer your statement about the trachea up to division in the aforesaid statement, will you please state the name and part of the trachea and part of the airway up to which the blood will go during ante- mortem?' to which he replied that the trachea is divided into two parts namely right and left bronchi. Witness was questioned 'had Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 24 of 345 there been ante-mortem bleeding, blood could have been found up to the bottom part/end part of the left bronchi and right bronchi (airways) and not up to the mere upper part of the windpipe i.e. up to the division of trachea, What you have to say?' to which he replied that the ante-mortem bleeding clots and narrows or blocks the passage. In the instant case the ante- mortem bleeding converted into clots and blocked the air passage deep up to trachea till its division. Witness was questioned 'Do you mean that postmortem bleeding does not form clot and dry?' to which he replied that Postmortem clots are very much formed but their picture is totally different from the ante-mortem clots. Witness was questioned 'Did the postmortem board recorded the minutes of the postmortem?' to which he replied that during the postmortem, the findings were recorded on a rough note and after preparation of final postmortem report, the rough notes were destroyed. Witness was questioned 'Did you note the colour and composition of the postmortem clots?' to which he replied that during examination, no postmortem clots were found in the windpipe, hence, there was no question of examination colour and composition of postmortem clots. Witness was questioned 'Did you try to wash the clots?' to which he replied that the wind pipe was completely opened and clots were picked from the site. Further, the clots were examined grossly and were found to be ante-mortem in nature. No microscopic examination of the clots was done. Witness was questioned 'Did you wash the clots in airways with the spirit or saline?' to which he replied that no spirit or saline was used to wash the clots as the same was not required. Witness was questioned 'Did you analyze the clot in Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 25 of 345 airways layer by layer? to which he replied that the clot was not examined layer by layer as in gross examination it was not possible and further, when the medical board was convinced it to be ante-mortem clot, it was not required to examined layer by layer. Witness was questioned 'Do you mean to say that no detail examination of the clot in airways was required before giving a confirm finding that the clot was ante-mortem or postmortem' to which he replied that the detailed examination was required in case of some confusion between ante-mortem and postmortem clots. In the present case there was no confusion regarding ante- mortem or postmortem clots as the clots were ante-mortem. Witness was questioned 'What are the characteristics of postmortem clots and how the same was to be differentiated with ante-mortem clots?' to which he replied that the postmortem clots have appearance of shiny and jelly like which are absent in the ante-mortem clots. Witness was questioned 'Can a patient aspirate anything with cuffed endotracheal tube in trachea with cuffed inflated?' to which he replied that in that condition, it was not possible, however, it was better to be asked from the clinician. Patient can aspirate if endotracheal tube was pre- maturely removed without assessing the stoppage of bleeding. Witness was questioned 'Before giving the opinion of medical negligence, did you go through all the treatment records, if yes, do you agree that as per treatment record the surgeon was satisfied that there was no bleeding immediately before shifting the patient to the ward to which he replied that all the medical documents provided by the police were examined by the board. Witness was questioned 'Please see the treatment notes of the Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 26 of 345 surgeon (Dr. Anil Handa accused No. 1) on the file marked as Mark-I at point A, wherein the surgeon recorded to his satisfaction?' to which he replied that as per above said documents at point A, he cannot make the word "bleeding" and postmortem report was based on the postmortem findings and not on near notes of Surgeon or some other doctors. Witness was questioned 'At point B, of the same document already Mark-I at point B, Surgeon had already recorded Homeostasis achieved. Will you please educate about the meaning of medical term Homeostasis.' The question was objected to by Ld. APP and it was disallowed. Witness was questioned 'Do you agree that had there been any bleeding in the ward, same could have been noted by the patient's attendant also. In the present case, since there was no such complaint on the entire medical record, do you agree that there was no bleeding in that case?'. Question was disallowed. Witness was questioned 'In your postmortem report Ex.PW1/A at point C, you have stated that 200 ml of blood was found. When and from where and how the bleeding came in stomach from the operating site?' to which he replied that in reference to point C as mentioned above, the findings were 200 ml of blood and blood clots, not only blood. In the present case, the source of that blood was only operating site as no other source was found during postmortem examination. Witness was questioned 'Is it possible the patient had swallowed the blood?' to which he replied that it was quite possible. In such cases, the blood oozing out from the operating site have two ways to be travelled in wind pipe and in food pipe, so the blood may be found in the stomach also. Witness was questioned 'Can patient Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 27 of 345 swallow the blood from the operating site at nose under the effect of general anaesthesia with muscle relaxants?' to which he replied that the food pipe is an open tube having no valve and blood can easily flow from operating site to the stomach. Witness was questioned 'I put to you that the patient cannot swallow anything under the effect of general anaesthesia and blood cannot come in stomach till the period when the child was under
anaesthesia?.' The question was disallowed as it was general in nature. The witness in that case had conducted postmortem, therefore, aforesaid question from the witness was not relevant. Witness was questioned 'you had not only conducted the postmortem in that case but had given the expert opinion against the accused persons being negligent for pre-operative as well as post-operative management in the present case and as such, all above questions are not being not replied by you?' to which he replied that after conducting postmortem examination by the medical board, report was prepared by all three experts and the queries asked by the IO were answered. He denied that he have not replied all above questions asked to him. Witness was questioned 'I like to suggest you that in the case in hand, the presence of blood in the stomach travelled from operation site and thereby that confirms that the patient was out of anaesthesia?' to which he replied that in the present case, he cannot say whether patient was out of anaesthesia or not. Blood from operating site may move to food pipe voluntarily or involuntarily due to excessive bleeding. He denied that it confirms that patient was out of anaesthesia. Witness was questioned 'It is suggested that while travelling through food Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 28 of 345 pipe, it requires voluntary movement of muscle of neck and throat?' to which he replied that he denied to suggest that only voluntary movement was required of muscles of neck and throat was required. Witness was questioned 'Can you refer any medical text book showing that involuntary movement in the present case was possible and can lead to presence of blood in stomach?' to which he replied that at present he cannot name any text book regarding involuntarily movement in the present case. Witness was questioned 'How did you measure quantity of blood being 200 ml in stomach of deceased?' to which he replied that the Board had measured 200 ml blood and clots by measuring pan. Witness was questioned 'It is suggested to you that there were so many liquid present in the stomach, so without differentiating the blood like liquid and the blood, postmortem board considered the entire quantity as blood?' to which he replied that he denied that so many liquids were present as suggested in the question as before operation, the patients are kept empty stomach. Witness was questioned 'In the present case, do you agree as a medical expert that in spite of being empty stomach from so many hours there is basal gastric secretion which are always present in stomach?' to which he replied in affirmative and agreed that gastric secretion may be present in the stomach but its quantity will be negligible as compared to 200 ml blood and blood clots. Witness was questioned 'Can you please tell what is the hourly basal gastric secretion amount?' to which he replied that he cannot tell. Witness was questioned 'Have you seen the CFSL report in the present case before giving you expert opinion?' to which he Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 29 of 345 replied that he cannot recall. Witness was questioned 'Please see the CFSL report Ex.PW1/D-2 (four pages) and answer whether the finding of the report suggest that the patient was alive for a sufficient time after completion of surgery and the anaesthesia medicine were found absent from the blood?' to which he replied as per CFSL report, common anesthetic compounds and common poison could not be detected. However, there was no opinion regarding sufficient time after completion of surgery when the patient was alive was given in the CFSL report. Witness was questioned 'What iș the expected time that it might have taken in the present case for getting all the anesthetic medicine out from the blood?' to which he replied that opinion regarding how much time it will be taken by the anesthetic medicine to come out of blood cannot be given by him as it was not related to postmortem examination and as per CFSL. report, there was no anesthetic medicine in the blood. Witness was questioned 'As per the CFSL report and your expert opinion and postmortem finding, the patient did not die because of any anesthetic medicine, what you have to say?' to which he replied that he admitted that as per CFSL report, no anesthetic medicine was found in the blood and in postmortem report also there was no mention of death being caused due to the any anesthetic agent. However, as per PM report Ex. PW1/A, the death was due to Asphyxia consequent to chocking of windpipe by blood and clots, as a result of bleeding from the raw area of naso-pharynx done by surgical intervention. Witness was questioned 'There are findings in the postmortem report as the urinary bladder and rectum were being half filled. Prior to surgery, patient was asked to pass urine just before Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 30 of 345 surgery. What is the expected time that a patient will take to fill half the urine bladder, who is fasting over night?' to which he replied that in general the fullness of urine bladder is caused in about 4 hours. The patient may take one and half hours to two hours to half fill the urine bladder. However, exact amount of urine in the bladder was not measured in the present case during postmortem. It was suggested to witness that in death due to asphyxia the general symptoms are eyes and mouth are open. He denied to suggestion that all asphyxial death shown eyes and mouth open. It may happen in certain cases of violent asphyxia like strangulation. Witness was questioned 'In your expert opinion, you have condemned the doctors being negligent of for want of lack of pre-operative diagnosis and subsequent post operative management, that finding is not based on postmortem report but on the reply of the accused's doctors? Aforesaid question was disallowed. Witness was questioned 'In your opinion no. 1 as to query no. 1 and 2 i.e. Ex.PW1/D-3 and Ex.PW1/D-4 you have observed that there had been error of pre- operative diagnosis and subsequent post operative management by the Surgeon and anaesthetist as evident by written statement. It is suggested to you that such observations is based solely on the written version of the accused's doctors and not based on any postmortem report vide report already Ex. PW1/B to which he replied that first of all it was not board opinion but answer to queries raised by the IO. He denied that their observations are based on written version of accused persons. Witness was questioned 'In your opinion to query no. 3 (Ex. PW1/D-5), you have answered that vicarious liability of Balaji hospital stands in Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 31 of 345 your opinion. On what basis you have stated aforesaid opinion?' to which he replied that it was not board opinion but answer to queries raised by the IO. After seeing the queries put by IO to the board Ex.PW1/D-6. He intended to say that aforesaid opinion was general opinion regarding vicarious liability of Balaji hospital as accused doctor were working under the control of Balaji Hospital. Witness was questioned 'In your answer to query no. 4 (Ex.PW1/D-7), on what basis you have observed that the postmortem findings are consistent with lack of adequate care timely by surgeon and anesthetic which is suggested and resulted into death of the patient?' to which he replied that as per post mortem report, blood clots and liquid blood were found in the trachea and its divisions resulted into death due to asphyxia of the deceased which can be prevented with due care in time. Witness was questioned that 'It is suggested that your observation as to lack of timely care by Surgeon and anaesthetist was contrary to the treatment records, CFSL report, various finding of PM report and fully misconceived?' to which he replied that he denied to such suggestion.
16. PW - 2 Retd. Senior CMO, Aruna Asaf Ali Road, Dr. K.L. Sharma, deposed that on 01.10.2004 he was posted at Sabji Mandi Morturary in department of Forensic Medicine. On that day postmortem examination of the dead body of deceased Komal Khatri, age around 12 years was conducted by the Board of Doctors comprising Dr. V.K. Jha, Dr. K. Goyal and himself. He was the chairman of the Board of Doctors, which was constituted by the Principal Secretary Health, Govt. of NCT vide Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 32 of 345 order no: F/342/114/2004-H&FW dated 01.10.2004. The dead body of deceased Komal Khatri was sent by SI Shri Ram with alleged history of sudden death followed by and surgical operation of Naso-pharynx on dated 30.09.2004 and the death was declared at 11:35 AM on same date by Shri Balaji Hospital Pvt. Ltd. 195 Deepali, Pitampura, Delhi. The family members had alleged that death of the deceased Komal due to medical negligence. Dead body of deceased was received in mortuary on 30.09.2004 at around 03:30 PM and were received on 01.10.2004 at around 05:00 PM, PM Report was prepared after PM was conducted on deceased Komal Khatri which is Ex.PW1/A. As per PM report no. 656 Ex.PW1/A, hospital gown which was worn by the deceased Komal Khatri was blood smeared, scalp hairs were also blood smeared. Dried blood was deposited over face and all surface of both ears. One injection prick mark over dorsum of right hand of deceased Komal Khatri. One needle tick mark of I.V. Line, under the plastic stick over the dorsum of left hand of deceased Komal Khatri. Scab Abrasion 4x2 over upper and outer surface of left knee of deceased. One injection prick mark over pre-cardical area over the left side chest of deceased. Leuoplakia of glans penis with retraction of fore skin. No incision mark over nasal orifice, palate (soft) or at zygomatic area seen. Now detail report which is already Ex.PW1/A from point A to A1 was prepared by Doctor K. Goyal bearing his signature at point A. Thereafter, an application was moved by IO alongwith treatment records in respect of Master Komal Khatri s/o Sh. Karamvir Khatri for seeking opinion regarding treatment records and thereafter another medical board was constituted by Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 33 of 345 the Medical Superintendent, Arunasaf Ali Hospital, Govt. of NCT dated 13.10.2004, the board was comprised of Dr. L.M. Sharma, Anaesthetist, Dr. M Lal, Surgeon and himself, Thereafter, medical report was jointly prepared by Dr. L.M. Sharma, Dr. M. Lal and himself. Now, detail report is Ex.PW2/A bearing his signature at point A. Witness was cross-examined by Sh. Jeevan Parkash, Ld. Counsel for accused Dr. R.K. Gupta (2) and Dr. Vivek Mangla (3) to which he deposed that he is not registered with Delhi Medical Council but registered with Rajasthan Medical Council and he was selected through UPSC for Govt. Job in 1975. It was suggested that after the DMC came into force in 1998 or so, he was required to get himself registered with the DMC to perform any job as a Doctor, whether in Govt. or private. Question was disallowed as it was irrelevant. Witness was questioned 'Is it correct that DMC has recommended action to be taken against the accused by the Principal Secretary (Health) Department of Health and Family Welfare, Govt. of NCT of Delhi vide letter dated DMC/14/2/complaint17/2002 dated May 2002 for not getting registered with the DMC and thereby violating the provisions of Section 15(6) of DMC Act and is any of his son is an advocate? Question was disallowed as it was irrelevant and scandalous question respectively. Witness was questioned "Is there any medical board at Sabji Mandi Mortuary?' to which he replied that there is no any medical board at any of the mortuary in Delhi, the boards are constituted as and when required. Witness was questioned who is empowered in law to constitute the Medical Board for giving expert opinion but question was disallowed as it was irrelevant. He denied that Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 34 of 345 medical board was not constituted for the purpose of expert opinion at his request. Kindly see Ex.PW2/A the medical board report dated 14.10.2004 signed by him referring the order of Medical Superintendent, Aruna Asaf Ali Hospital, constituting a panel of board of doctors vide order dated 13.10.2004. He was questioned "Can you produce the document by which medical board was constituted on that date?' to which he replied that the said letter was with the IO. Witness was shown the letter, written to the chairman of medical board, mortuary of Sabji Mandi, Delhi by the IO, which was running in 2 pages and witness stated that the said letter, is Ex.PW2/B in his own handwriting bearing his signature at point B in response to letter address to the Chairman of Medical Board. He denied that he himself nominated as the member of medical board constituted for the purpose of expert opinion. He denied that Aruna Asaf Ali Hospital had not constituted any medical board. He denied no board was constituted in persuasion of order dated 13.10.2004. He denied that Dr. M. Lal (Surgeon), Dr. L.M. Sharma (Anaesthetist) was asked to assist him by the Aruna Asaf Ali Hospital, MS. Witness was questioned 'Can he identity signature on Ex.PW2/B at point C?' to which he replied that he cannot identify the Signature at point C due to lapse of time. Witness was questioned 'Whether board vide order dated 01.10.2004 was only constituted for the purpose of PM of deceased Komal Khatri or for medical opinion?' to which he replied that under that order the Medical Board was constituted to conduct the autopsy of deceased Komal Khatri. Witness was questioned "I put it to you that the scope of the board was to conduct only autopsy and find Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 35 of 345 out the cause of death and not any medical opinion?' to which he replied that in pursuance of Actus Novus Interveniens, it is not only to catalogue the injuries and give the cause of death but it has got a wider scope for autopsy surgeons to interpret mode / manner of death, time since death, if any weapon used or any procedure done, whether done by single man or it involves more than one man, that is the scope of autopsy. Witness was questioned 'Can you refer any text book, which shows the scope of autopsy as suggested by you above said though question was disallowed as irrelevant. Witness was questioned that 'it is suggested that it is not a scope of the autopsy to offer the review report on the treatment papers?' to which he replied it is definitely the scope of autopsy to peruse the treatment record for giving review opinion. Witness was questioned 'in your medical board report Ex.PW2/A dated 14.10.2004 you had stated to had peruse 25 photocopies of treatment records, and will you please specify the list of those papers? to which he replied the original complete treatment records of deceased was produced by the IO before the board and thereafter members of the board gave opinion on the basis of treatment record and the same were returned to IO and they did not keep the photocopies of the same. The letter dated 13.10.2004 by Medical Suptt. Aruna Asaf Ali Govt. Hospital, Delhi constituted the medical board was sent directly to the IO. He admitted that he have not annexed any document to his report. He volunteered that as all the documents were returned to the police officials in original. He admitted that he was not able to say that what 10 papers were not shown to him while giving opinion of the medical board. The report of the Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 36 of 345 same which is already Ex.PW2/A. Witness was questioned "you say that you have not annexed any papers with your medical board record (Ex.PW2/A) however your report at point A reads that you have annexed paper no. 6?', to which he replied that same is on record. He denied that he has misinterpreted the report Ex.PW2/A regarding the para no. 1 of the report Ex.PW2/A. Before giving the observations he had not talked with accused doctors and volunteered that as it was not advised by medical superintendent of Aruna Asaf Ali Hospital to summon the accused doctors. Witness was questioned 'in the medical board report Ex.PW2/A at para 2, 3 & 4 you are referring para no. 8, 7 & 19, these papers were not with his medical board record?', to which he replied that in his view these papers are available on record. He denied that he did not call the family members of the deceased to identity the dead body. The witness was questioned 'autopsy incision was whether in Y shape or T shape?', to which he answered that when the PM examination is done then there are two types of incision are given. In the instant case the incision was made from base of the chin up to the symphosis pubis it a straight incision. After that incision, the skin was reflected on both sides apart and the clavicle joints are separated by autopsy knife and then the ochondral junctions are incised up to the lowest end and then an incision was made around the base of the chin to separate the muscles and after pressing tongue by both fingers the entire throat structure are pulled thereby pulling the heart and lungs which are then separated from the upper end of stomach. All these structures are placed on the table and have done autopsy in that case. Dr. K. Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 37 of 345 Goyal who was the member the board, had noted the findings. He did not remember the date and timing on which he has signed the PM report Ex.PW1/A (deceased Komal Khatri) and volunteered that same was on record. Witness was questioned, it is put to him that he has he had completed the PM examination at 6.45 pm on 01.10.2004 and immediately thereafter he had signed the PM report, to which he replied that he has not signed the PM report immediately. It took about one hour to prepare the report, thereafter, all the board members including him signed the same. Witness was cross-examined by Sh. Sunil Ahuja Ld. Counsel for accused Dr. Anil Handa accused no. 1 to which he deposed that he has not done specialization in ENT. He never carried out an adenoid surgery. ENT specialist was not available at the time of formation of medical board. Witness was questioned was he aware that as per clause 7.20 of Indian Medical Council Professional Regulations 2002 a physician cannot claim to be a specialist unless he has a special qualification in that branch but question disallowed as it was not relevant in that case. Witness was questioned 'can he say the other two members of the board were ENT specialist?', to which he replied that they were not ENT specialists. He has not made any request for the ENT specialist in the medical board. Witness was questioned was he aware that the DMC had held an inquiry into the death of Komal Khatri by the treating doctors and they had held that no medical negligence could be attributed to which he replied that the PM examination is a fact finding inquiry. The persons whether DMC or any the other institutions who had not seen the dead body is not eligible to comment over the findings of PM examination.
Case No. 528685/2016FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 38 of 345 Witness was questioned would he agree that a doctor conducting PM examination should not comment upon the negligence of the doctors and should confine himself to the cause of death? but question was disallowed as irrelevant with the facts of that case. Dr. Anil Handa (accused no. 1) had written to him that the biopsy report was awaited and it could be collected on 05.10.2004. Witness was questioned 'did you go through the reply of Dr. Anil Handa when you have sought the treatment paper of the deceased from the hospital?', to which he replied that he did not remember. Witness was questioned 'did he remember that he had also sought reports of CT scan and angiography?' to which he replied that he did not remember. Witness was questioned 'Has he seen the treatment papers of deceased Komal Khatri from Apolo Hospital?', to which he replied that he had not seen. Witness was questioned 'did he seek any explanation regarding CT scan and angiography from the Dr. Anil Handa vide letter dt. 04.10.2004 and Dr. Anil Handa had replied to the same vide Ex.PW2/D1 which is signed by him?', to which he replied that he admitted that he has moved the letter which was earlier Mark F and now same is Ex.PW2/X and got reply of the same which is Ex.PW2/D1. Witness questioned that 'was it correct that the biopsy report was important to the draw the conclusion about the PM report of Komal Khatri?', to which he replied that 'It is incorrect'. He denied that he found any such pressure symptoms resuscitation on the dead body. He did not remember whether there was a prick mark over heart region of the dead body of Komal Khatri. He volunteered that was on record. He admitted that as per Ex.PW1/DA he had received 35+2 X rays on Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 39 of 345 01.10.2004 at 5.00 pm vide Ex.PW1/DA and it is signed by him. The order number of formation of second medical board and the date thereof is already on record. Witness was questioned 'is it correct that X-ray is the confirmative test for diagnosis of adenoids?', to which he replied that X-ray is one of the test diagnosing the hypertrophy of adenoids. He had seen the X ray of deceased Komal Khatri. Witness was questioned 'Did the X ray of Komal Khatri suggest the adenoid disease?', to which he replied that X-ray alone can give some diagnosis of adenoid hypertrophy. The X ray of Komal Khatri suggested the adenoid hypertrophy. Witness was questioned 'is it correct that bleeding is a common complication in adenoid surgeries?', to which he admitted that bleedings after the operation of adenoids is common. Witness was questioned 'how long after the operation, can bleeding occur after adenoids surgery?', to which he replied that the bleedings will continue to occur even after death. Witness was questioned 'did he use saw for reaching the inner part of the nose of deceased Komal Khatri?', to which he replied that saw was used to open the cavities and to see the rudimentary part of the operation. He had seen a paper from hospital in which it was mentioned that Komal Khatri was declared dead at 11.35 am on 30.09.2004. He had also seen death summary Ex.PW2/D2 prepared by Dr. Anil Handa. He had also noticed the time written on the top of Ex.PW2/D2 i.e 12.35 pm. He admitted that there is a protocol that the patient has to be observed after interval of 15 minutes then after half hour then after one hour after the operation. It is also correct that the pulse and BP was also to be monitored at the above said intervals. Witness was Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 40 of 345 questioned 'did he find any bleedings or other complications noticed by the monitoring staff in the treatment papers of the patient Komal Khatri put to him by the IO?', to which he replied that he did not remember. Witness was questioned 'is it correct that patient would vomit the accumulated blood in the stomach?' but question was disallowed being general in nature. He did not find any evidence of vomiting of accumulated blood but the accumulated blood was aspirated through the wind pipe into the lungs and some of the blood entered the stomach. He admitted that there was no such fact of fluctuation of BP and pulse was recorded in the treatment papers at Balaji Hospital. He denied that the PM was conducted by him runs counters to the Medical Jurisprudence or that his report is not correct and it is against the medical norms.
17. PW-3 Dr. V.K. Jha, CMO, BJRM Hospital, Jahangir Puri, Delhi deposed that on 01.10.2004 he was posted as In- charge, Mortuary at Sanjay Gandhi Memorial Hospital. On that day, postmortem was conducted on the dead body of Komal Khatri S/o Sh. Karamvir, aged about 12 years in Sanjay Gandhi Mortuary. The postmortem was conducted by the three board members namely Dr. K.L. Sharma, Dr. K. Goyal and myself. Postmortem Medical Board was constituted by the Principal Secretary (Health), GNCTD, Delhi vide order no. F 342/114/2004 dated 01.10.2004. The dead body of Komal Khatri was sent by SI Sri Ram with alleged history of sudden death followed by operation (surgical) Naso-Pharynx on dated 30.09.2004 and death was declared at 11.35am on same day by Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 41 of 345 Sri Balaji Hospital, Pvt. Ltd. Dipali, Pritampura. Family members of deceased had alleged that death of deceased Komal Khatri was due to medical negligence and dead body was received in mortuary on 30.09.2004 at 3.30pm and inquest proceedings on 1.10.2004 at about 05.00pm. Detailed report of medical board is already Ex.PW1/A bearing his signature at point C. Thereafter, IO of the present case asked some queries from medical board on postmortem report Ex.PW1/A. Thereafter, detailed reply was prepared by medical board which is already Ex.PW1/B bearing his signature at point C. Thereafter, he was duly cross examined by Sh. Jeewan Prakash, Ld. Counsel for accused Dr. Ravinder Kumar Gupta and Dr. Vivek Kumar Mangla. He deposed that he is not MD (Forensic), have not conducted any adenoid Medan) surgery. He was not an ENT surgeon. He was also not general surgeon he was MBBS graduate. He has not got any opportunity to deal with post- operative care of adenoid surgery. He voluntarily stated that he have read the ENT subject and read about adenoid and surgery in he further deposed that the findings of the postmortem was being recorded by Dr. K Goyal simultaneously on the postmortem report which has been exhibited as Ex.PW1/A. Dr. K. L. Sharma has done the postmortem. Dr. K.L. Sharma was the chairman and it is he who decided as to in what shape the postmortem was to be conducted. The shape in which the postmortem was to be conducted was not important but the procedure was important. He says it was a case of post operative case, he has seen during the postmortem raw area of naso-pharynx, which was oozing blood at the time of postmortem. The time of postmortem was Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 42 of 345 about 32 hrs since death. The blood will remain confined locally around the raw area. There was no speed noted about the oozing of blood in dead body. During the cross examination he has was duly question as "Question : What was the quantity of blood that was found oozed from the operated site in 32 hours i.e. since death and at the time of postmortem?" and he replied as "There is no relevancy of postmortem oozing of blood, hence, amount was not noted" Thereafter he was duly cross examined by Sh. Sunil Ahuja, Ld. Counsel for accused Anil Handa and the witness deposed that there was no ENT specialist in the board formed. He was In-charge, Mortuary at that time. The board was formed by Delhi Government and they do not make any request for providing the assistance of an ENT specialist. He voluntarily stated that as the patient has expired, the postmortem changes developed, hence, usually ENT are not well-versed with the dead subject. He has seen Ex.PW1/B in which they have given findings about pre-operative investigation and post-operative care in reference to query of the IO. They had not found any other disease apart from the raw area as mentioned in the postmortem report. He had seen treatment report as per inquest papers given by the IO. During the deposition he had been shown Ex.PW2/DA running into 3 pages from Mark P to A1 in which accused Dr. Handa requested the board to collect the tissue / histopathology report on 05.10.2004. He was questioned as "Did you see the aforesaid report before giving your findings/opinion. He answered as "after seeing the record, he states that he had not seen that report". He can not comment anything about tube used during the course of surgery in the instant case since was not Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 43 of 345 member of the clinical board. He further deposed that he had seen Ex.PW3/D1 which bears his signature at point A at the time of giving his opinion. He can not comment on the questions pertaining to the clinical board. DMC is a statutory body. He do not took the sample from the tracheal blood clots to rule out gastic juices. He voluntarily stated that during postmortem they see the visible difference between the gastric juice and blood clots. He further deposed that usually a clot would form at the site of injury if the bleeding is ante-motem.
18. PW-4 Dr. L.M. Sharma, Senior Consultant anaesthesia & critical care deposed that on 13.10.2004, Medical Superintendent, Aruna Asif Ali Govt. Hospital Civil Lines constituted Board of Panel of doctors consisting of Dr. M. Lal, Dr. K.L Sharma and himself for seeking expert opinion on the basis of medical treatment records of deceased Master Komal Khatri S/o Karambir Khatri. The treatment papers of master Komal Khatri were submitted by Inspector Vigilance Delhi Police Ashok Vihar before the Board. They had pursued the 25 photocopies of treatment papers of master Komal Khatri submitted by Inspector Delhi Police Ashok Vihar and on the basis of these documents they had opined that after pursuing death summary of deceased Komal Khatri signed by Dr. Anil Handa, death summary was Mark X1. Dr. Anil Handa mentioned in death summary Mark X1 that Komal Khatri was declared dead at 11:35 AM on 30.09.2004 but on the back side of page 20 now Mark X2 it has been mentioned Patient conscious, respiration normal, no bleeding to be transferred to Semi-Private Ward at Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 44 of 345 12:30 PM on the same date and they had opined these are contradictory findings recorded on the treatment papers of master Komal Khatri, In case patient died at 11:35 am on 30.09.2004, how he could be conscious and normal and fit for Shifting in the ward in the same date. In their opinion these are contradictory fact. After pursuing page no. 8 (now Mark X3) of medical record of deceased Komal Khatri it was mentioned that at point 2 no CT Scan or angiography was performed. Therefore, they had opined that no efforts were made to confirm the differential diagnosis between adenoid and hyper vascular pathology like angiofibroma. After pursuing page no. 7 (now Mark X4) of the medical record of master Komal Khatri, witness stated that it has been mentioned that this was the diagnosed case of adenoidal hypertrophy by Apollo Hospital doctors and thereafter they had opined that no efforts were made to distinguish the differential diagnosis by Shree Balaji Hospital doctor. They opined that it was act of omission. After pursuing page no. 19 now Mark X5 the had opined that the reversal of patient from anaesthesia has not been mentioned elaborately about gag reflex and cough reflex and bleeding from the post-pharyngeal with which should have been checked periodically. The continuous monitoring of the patient at the bedside is required in order to check and prevent the back flow of the blood from the naso-pharynx to the trachea. After pursuing page no. 20 now Mark X6 at 8:30 AM it was mentioned that patient was sleeping pulse 72/mt., BP 110/70, but there was no mention of active bleeding from the operated area. The postmortem findings as mentioned on page 3 & 4 were not supporting their view expressed on page 20. (they opined that Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 45 of 345 entire anaesthesia procedure and its reversal till 8:30 AM on 30.09. 2004 do not mention any evidence of active bleeding from the operation site which was contradiction according postmortem findings. This was the joint responsibility of act of omission & commission by surgeon and anaesthetist and the vicarious liability of the management of Shri Balaji Hospital, Delhi. Medical Board Report was already Ex. PW2/A, which bears his signature at point B. Thereafter, he was duly cross examined by Sh. Sunil Ahuja Ld. Counsel for accused Anil Handa and he deposed that he was working at Aruna Asif Ali Hospital, Civil Lines 13.10.2004 as Senior Resident anaesthesia. He remained posted in the said hospital from 2002 to 2005. He has no experience/qualification in Ear, Nose & Throat specialization. He had not received any written communication or order to join the other doctors for giving this opinion. He was informed verbally by the Medical Superintendent but he do not remember his name. He had seen only twenty five papers as mentioned above in the Medical Board Report. During the depositing he had gone through the judicial file and after perusing the same he states that all the medical documents submitted by Inspector of PS Ashok Vihar is not on record and therefore he stated that he cannot say if he had the papers pertaining to the previous treatment given to the deceased before the operation. The papers perused by him do not show that the deceased was not suffering any of the disease except adenoid. He do not remember if they had called the treatment papers for explanation of the treating doctors. They had seen the X Ray report but not the biopsy report. He had seen the already Ex.PW2/D1 Dr. Handa had vide letter 04.10.2004 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 46 of 345 informed the police that the biopsy report to be collected on 05.10.2004. Patient was diagnosed to have adenoid at the Apollo Hospital but surgery was done at Balaji Hospital. Their report was dated 14.10.2004. He further deposed that biopsy report was a sure test of confirming a tissue and diagnosis. He further deposed that after the surgery, as per the protocol, the doctor operating and the nursing staff should examine the patient after every 15 minutes for one hour after the adenoid surgery. He further deposed that doctors write these instructions for the attending staff and as per document Mark X1, Doctor Anil Handa declared the patient dead at 11:35 AM and death summary was prepared by him at 12:35 PM. During the deposition he was duly questioned as "Q. I put it to you that Dr. Handa has mentioned the time 12:30 pm on the document Mark X2 with regard to the instructions for the attending staff to attend and observe patient till 12:30 PM. What you have to say?" and he answered as "It is correct that he has asked to monitor the vitals of the patients every half hour till 12:30 PM".Thereafter, he further deposed that he has seen the X-ray report dated 15.09.2004, which was signed by him at point A and it shows that the deceased Komal Khatri had hypertrophied adenoids. That report was then Ex.PW4/D1. He have also seen the biopsy report on that day which was dated 06.10.2004 suggesting Master Komal Khatri was suffering from non specific adenitis. That document was Ex.PW4/D2. He further deposed that Ct scan and angiography was not needed for adenoids surgery. However, if they suspect some other pathology like angiofibroma then CT scan or angiography may be done to know its extension. He Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 47 of 345 further deposed that there was no history suggested of angiofibroma. He denied the suggestion that x-ray was the confirmatory test for adenoids. He further deposed that bleeding is a known complication of adenoid operation. It can be immediate or delayed bleeding. Even after successful operation bleeding can occur for which re-exploration is required. By re- exploration it means that if bleeding is inevitable then re-surgery is required. He further deposed that in the case sheet of the operation of the deceased there was no noting of bleeding of the naso-pharynx. He further deposed that there was no mention of the time when the bleeding occurred after the operation in the PM report. However, PM report said that the massive blood clot and liquid blood up to the division of trachea was seen. He further deposed that the blood pressure of the patient would go down and the pulse will go up if the patient starts bleeding after the operation. He has seen the file/case the of sheet hospital and state that pulse and BP were normal tilt 08:45 AM. However, at 09:30 AM patient was found to have no pulse, no BP and no respiration. He further deposed that due to various measures taken during resuscitation there can be slight or passive bleeding during intubation. He further deposed that there is a process of intubation before surgery and extubation of the trachea after the adenoid surgery Intubation is done to ventilate and protect the air way from secretions and blood. There can not be bleeding from the nose after the adenoid surgery because adenoid surgery always oral intubation is done. However, small bleeding can occur in the throat. He further deposed that immediately if bleeding occurs it is removed by suction and always oral packing Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 48 of 345 is done. Patient can vomit if blood goes in to stomach. Accidentally, the patient can also aspirate the blood and vomitus. During the deposition he was questioned as "Q. Can extubation be done if there is active bleeding from the operational site?" and he answered as "No." . He further deposed that after adenoid surgery the patient was kept in the post adenotonsillectomy position i.e. either right or left lateral position with knee of the upper, lower limb bend at the knee joint. He further deposed that Dr. Anil Handa had taken the preventive measures as noted in the case history and Dr. Anil Handa taken appropriate resuscitative measures at 09:30 AM. He further deposed that lateral position after the surgery is done so that any collected blood can come out from the mouth. Delhi Medical Council is their governing body and all Doctor's are governed by the rules and regulations laid by DMC. He do not know if the DMC had absolved both the accused after making the detail inquiry in the matter. He further deposed that yes there is a ENT Department and anaesthesia Department in the Aruna Asaf Ali Govt. Hospital Death can occur after the adenoid surgery if bleeding goes undetected after the surgery he can not say about the percentage of mortality after the adenoid surgery. ENT consultant will be able to tell that. He further deposed that their report fastening the liability of the doctors was false. Thereafter, he was duly cross examined by Sh. Jeevan Parkash, Ld. Counsel for accused Dr. Ravi Gupta and Dr. Vivek Mangla and he deposed that cough reflex and swallowing reflex can be detected on the OT table but for Gag reflex they have to simulate posterior pharyngeal wall. So patient is extubated after the cough reflex develops. First cough reflex Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 49 of 345 comes then swallowing reflex. Gag reflex was not tested. He further deposed that after seeing the PM report finding there was a collection of 200 ml blood in the stomach which has come due to swallowing reflex from the operating site. He further deposed that his opinion was based on the PM finding as to the bleeding have proceeded with his opinion presuming that the PM finding as to bleeding is correct he do not know whose notes was at 08:30 AM in the treatment records. He has studied the whole file himself in the Court. Dr. K.L Sharma was a Forensic Expert. He do not know who was the chairman of the medical board in which he represented as a member. He voluntarily stated that board of three Doctors from different discipline was formed.
19. PW-5 Dr. M. Lal S/o Sh. Raj Pal Singh R/o H.No- B-39, Gaurav Appt. IP Extension Parpadgunj, Delhi deposed that on 13.10.2014 he was posted at Aruna Asaf Ali Govt. of NCT, Hospital, Delhi as a surgeon. On that day, Medical Superintendent of Aruna Asaf Ali Govt. of NCT, Hospital constituted the board of penal of doctors consisting of Dr. L.M. Sharma anaesthetist, himself, Dr. K.L. Sharma Forensic Expert to offer the review report on treatment papers of Sh. Balaji Hopsital in respect of Master Komal Khatri S/o Sh. Karambir Khatri. That treatment papers were submitted before the board by the Inspector Vigilance of PS Ashok Vihar. They perused 25 photocopies of treatment papers of deceased Komal Khatri and observed following discrepancies. After pursuing death summery already marked X, they noticed that Dr. Anil Handa mentioned in the death summery that Komal Khatri was declared dead at about Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 50 of 345 11.35 pm on 30.09.2004 on the back side it has been mentioned "Patient conscious, respiration normal, no bleeding to be transferred to Semi -Private Ward at 12:30 PM on the same date"
and they had opined these were contradictory findings recorded on the treatment papers of master Komal Khatri. In case patient died at 11:35 am on 30.09.2004 how he could be conscious and normal and fit for shifting in the ward in the same date. In their opinion these were contradictory fact, After pursuing page no. 8 (already Mark X3) of medical record of deceased Komal Khatri it was mentioned that at point 2 no CT Scan or angiography was performed. Therefore, they had opined that no efforts were made to confirm the differential diagnosis between adenoid and hyper vascular pathology like angiofibroma. He further deposed that after pursuing page no. 7 (already Mark X4) of the medical cord of master Komal Khatri, he stated that it has been mentioned that this was the diagnosed case of adenoidal hypertrophy by Apollo Hospital doctors and thereafter they had opined that no efforts were made to distinguish the differential diagnosis by Shree Balaji Hospital doctor. They opined that it was act of omission. He further deposed that after pursuing page no. 19 already Mark X5 they had opined that the reversal of patient from anaesthesia has not been mentioned elaborately about gag reflex and cough reflex and bleeding from the post-pharyngeal with which should have been checked periodically. The continuous monitoring of the patient at the bedside is required in order to check and prevent the back flow of the blood from the naso pharynx to the trachea. He further deposed that after pursuing page no. 20 already Mark X6 at 8:30 AM it was mentioned that patient was Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 51 of 345 sleeping pulse 72/mt., BP 110/70, but there was no mention of active bleeding from the operated area. The postmortem findings as mentioned on page 3 & 4 were not supporting their view expressed on page 20 they opined that entire anaesthesia procedure and its reversal till 8:30 AM on 30.09.2004 does not mention any evidence of active bleeding from the operation site which was contradiction according to this was the joint responsibility of act of postmortem findings. omission & commission by surgeon and anaesthetist and the vicarious liability of the management of Shri Balaji Hospital, Delhi, Detailed Medical Board Report was already Ex.PW2/A, which bears his signature at point C. Thereafter he was duly cross examined by Sh. Sunil Ahuja Ld. Counsel for accused Anil Handa wherein he deposed that he do not have any specialization in ENT. He has never worked with the ENT department at any hospital have joined the medical board and there must have the order of the MS for formation of the board. He further deposed that only MS has power to form board. It was mentioned in the report of the medical board that the board was constituted by the MS consisting of the above said doctor. He denied the suggestion that there was no written order of the MS for forming the board. He do not remember if any explanation of accused doctor was called by the board in respect of the treatment meted out to the deceased. He further deposed that biopsy is a standard test for the diagnoses of the disease. They had perused 25 papers as per the report and he do not remember if the biopsy report was part of those 25 papers. They were not provided with the ET tube alongwith those 25 papers. They had not examined the ET tube Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 52 of 345 as mentioned in the seizure memo dt. 30.09.2004. He further deposed that if the vomit goes into the wind pipe accidentally it will be mixed up with gastric juices. He was questioned as "Is it correct ET tube is used during an adenoid operation to prevent aspiration of blood into the wind pipe?" and he answered as "It is correct". During the deposition he has been asked to go through the PM report dated. 01.10.2004 and comment if the hospital gown blood smeared was produced before the board or not and to which he stated that the gown blood smeared was not produced before the board. He further deposed that sample of blood from the wind pipe was not given to us to rule out gastric juices content. He was further questioned as "Are you aware that there is a circular of the DMC dt. 21.07.2009 that medical negligence cases should be referred to the DMC for further investigation?"
and the question was objected by Ld. APP for the State and Court observed that question disallowed as this was issue of law and not of fact. He denied the suggestion that he had given the report Ex.PW2/A under the pressure of the police and the complainant thereafter he was duly cross examined by Sh. Jeevan Prakash, Ld. Counsel for the accused no. 2 (Dr. R.K. Gupta) and accused no. 3 (Dr. Vivek Mangla) and he was questioned as "Have you seen the PM report Ex.PW1/A before giving the medical opinion in the present matter?" and he answered as "I had seen the PM report before I gave the medical opinion report Ex.PW2/A" and he was further questioned as "Is it correct that you proceeded for giving opinion having presumed that PM findings are correct?"
Court observed that Question be disallowed as question of presumption is not a question of fact as it is question of mental Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 53 of 345 status. He was further questioned as "Did you call for any scientific test to determining the correctness of the finding of the PM report as to the presence of blood whether anti mortem or postmortem?" and he answered as "No."
20. PW 6 Retired Director Incharge at CFSL Hyderabad V. Venugopal s/o Sh. S. Venkatamuni R/o H.No. 2-1-315, Road no. 4D, Mamta Nagar Colony, Nagole, Hyderbad deposed that on 27.12.2004 he was working of Assistant Director Toxilogy at CFSL Hyderabad. On that day, one sealed wooden box was received by CFSL through Ct. Dharambir Singh. The seal of wooden box bears the impression of SGMH Mortuary, Mangolpuri, Delhi-83 The case was marked to him for chemical examination and report. He further deposed that the sealed box was labeled as PM no. 656/04 dt. 01.10.2004 DD. no.18 dt. 30.09.2004 Komal Khatri Male, 12 years containing 3 plastic jars and one plastic bottle. The plastic jar labeled as sample no. 1 PM Report no. 656/04 dt. 01.10.2004 Komal Khatri, Male 12 years containing Ex. I stomach, its contents and small intestine. One plastic jar labeled as Sample no. 2 PM No. 656/04 dt. 01.10.2004 Komal Khatri Male 12, containing Ex. 2, pieces of liver, spleen and both kidney. One plastic jar labeled as Sample no. 3 PM No. 656/04 dt 01.10.2004 Komal Khatri Male 12, containing Ex. 3, blood. One plastic jar labeled as Sample no. 4 PM No. 656/04 dt. 01.10.2004 Komal Khatri Male 12, containing Ex. 4, pieces of lungs and brain. The condition of the seal parcels were intact and tallied with specimen seal. He analyzed the above said exhibits by colour test, chemical met-bods and chromatographic Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 54 of 345 techniques. The results thus obtained were as common anaesthetic compounds and common poisons could not be detected in the contents of Ex. Marked as 1, 2, 3 and 4 respectively. He prepared the chemical examination report which is now Ex.PW6/A bearing his signature at point A. Thereafter, he was duly cross examined by Sh. Sunil Ahuja, Ld. Counsel for accused no. 1 Dr. Anil Handa. He deposed that few anesthetic drugs are volatile and requires special techniques for sampling and transfer. He further deposed that lung has to be kept in preservative after PM and in an air tight container. Blood can be persevered in suitable preservative. A sample taken on 01. 10.2004 and sent to CSFL on 27.12.2004 and if they have not preserved in cold condition (refrigeration) there was a possibility of getting evaporation. During the deposition he was questioned as "Q Are you in a position to say what anesthetic drugs were administered to Komal Khatri and what drugs were used for reversal of anesthetic?" and he answered as "The said question is not comes under the purview of Forensic Toxicologist." Thereafter, he was duly cross examined by Sh. Jeevan Prakash, Ld. Counsel for R.K. Gupta and Vivek Mangla, though opportunity was given, he did not avail it.
21. PW-7 Retired Inspector Azad Singh s/o Late Kanwal Singh R/o RZ-157-A New Roshan Pura, Najafgarh, New Delhi deposed that on 06.10.2004 he was posted at PS Mangolpuri as Additional SHO. On that day, further investigation of the present case was assigned to him. On that day, he received a copy of FIR of the present case from the concerned DO and he Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 55 of 345 also received relevant documents i.e. medical documents / PM report of deceased Komal Khatri etc. from SI Shri Ram. During the course of investigation he visited Balaji Hospital near Deepali Chowk and prepared a rough site plan of OTI ICCU Room at the instance of SI Shri Ram which is Ex. PW7/A bearing his signature at point A. During the course of investigation examined Administrative Officer of the hospital. Thereafter, further investigation of the present case was transferred to the Vigilance Section of the NW District. Thereafter, he was duly cross examined by Sh. Sunil Ahuja, Ld. Counsel for Anil Handa and witness deposed that he did not remember names of the doctors and attending staff and nurse disclosed by the administrative officer in his statement recorded u/s 161 Cr.PC of hospital. He would not like to see the statement of Naresh Pratap written by him. The name given by Naresh Pratap are mentioned in his statement which was a matter of record. He had not examined any attending staff associated in the surgery of Komal Khatri. He had not examined any operation equipment used in the operation of the deceased Komal Khatri. He did not know if the deceased remained in the semi Pvt. Till 9:30 AM on 30.09.2004. During the deposition the attention of the witness was drawn towards the site plan which is in the judicial file and witness states that he has shown the rooms in the site plan but the ward not the semi Pvt Ward. He voluntarily stated that he has shown the room but he cannot say if the semi Pvt Ward was one of those rooms. He has not examined any doctor of the Apollo hospital. He voluntarily stated that he only visited Balaji Hospital during the course of his investigation. He had not seen any blood stained gown of the Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 56 of 345 deceased in the Balaji Hospital. He had not obtained any opinion from an ENT specialist regarding the case of Komal Khatri. He do not remember if the complainant had moved an application against him to the higher authority to transfer the case. He had also not seen the ET Tube used in the operation. He had also not collected any biopsy report of the deceased Komal Khatri. He voluntarily stated that he investigated the present case from 06.10.2004 to 11.10.2004 and during this period he was also busy in investigation of another case. Thereafter, he was duly cross examined by Sh. Jeevan Prakash, Ld. Counsel for R.K. Gupta and Vivek Mangla and Ld. counsel adopted the same cross- examination which is done by Ld. Counsel for the accused Anil Handa.
22. PW-8 ASI Pawan Kumar, deposed that on 30.01.2006 he was posted at Vigilance Branch, North West District, Delhi deposed that on that day, he alongwith Insp. Shri Banwari Lal, Insp. Vigilance Branch went to RG Stone Hospital, Pushanpjali Enclave, Delhi. There they met a doctor who handed over the memorandum of RG Stone to Insp. Banwari Lal. IO Insp. Banwari Lal seized the said memorandum vide seizure memo Ex.PW8/A bearing his signature at point A. Thereafter, he was duly cross examined by Sh. Sunil Ahuja, Ld. Counsel for accused Anil Handa and witness deposed that no document was seized by the IO in his presence in the manner as mentioned above and he was duly cross examined by Dr. Vivek Mangla and Dr. Ravi Gupta (both the accused persons) and though the opportunity was given, he availed none.
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23. PW-9 Rajesh s/o Sh. Vijay Kishore Sharma, Receptionist at Handa X Ray Lab, Sector 7, Rohini, Delhi deposed that he has has come to depose on behalf of Dr. Amarjit Handa vide authority letter Ex.PW9/A where stamp and signature of Dr. Amarjit Handa at point A. The X Ray report No 947/4 Ex.PW9/B has been prepared by Dr. J.R. Duggal, Radiologist which bears his signature at point A. He can identify the signatures of Dr. J.R. Duggal on Ex.PW9/B at point A as he has worked with him and seen him writing and signing on so many occasions during the course of his duty. The pathology reports No. 982/04 dated 28.09.2004 running in to two pages Ex.PW9/C and Ex.PW9/D both prepared by Dr. Amarjit Handa which bears his signatures on each page at point A respectively. He can identify the signatures of Amarjit Handa on Ex.PW9/C and Ex.PW9/D at point A as he has worked with him and seen him writing and signing on so many occasions during the course of his duty. The report no: 4079/04 which was already Ex.PW4/DA was also prepared by Dr. J.R. Duggal which bears his signature at point A. He only can identify the signatures of both the Doctors on above mentioned reports but he have not aware of the contents and result of these reports as he do not have such qualifications.
24. PW-10 Dr. Amarjeet Handa, Owner and Pathologist, Handa x-ray & Clinical Lab, Sector-7, Rohini, Delhi deposed that that on 15.09.2004, baby Komal Khatri, aged about 12 years, was brought to our clinic whereby an X-ray, soft tissue neck Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 58 of 345 lateral view was conducted and a report qua that was prepared which was already exhibited as Ex.PW4/D1. The document which is Ex.PW4/D1 was signed by Dr. J.R. Duggal. He can identify the signatures of Dr. J.R. Duggal, as he was working in his laboratory at that relevant time and he has seen him writing and signing during the course of his official duties. The document which was already Ex.PW9/B having signatures of Dr. J.R. Duggal at point A. Document which was already Ex.PW9/C and Ex.PW9/D bearing his signatures at point A respectively. Thereafter, he was duly cross examined by Sh. Sunil Ahuja, Ld. Counsel for the accused Anil Handa and witness deposed that the patient was referred by Dr. Anil Handa to their laboratory. He further deposed that Adenoids was detected vide Ex.PW4/D1. He voluntarily stated that the blood report of the patient was normal and so was the X ray chest. The x ray chest and the urine analysis report was referred by the Apollo Hospital and the report of the same are already exhibited as Ex. PW9/B and Ex. PW9/C. The hematologist report was also referred by the Apollo Hospital which is already Ex.PW9/D. He further deposed that the TIC level in the blood of the patient was mild high. Thereafter, he was duly cross examined by Sh. Jeevan Prakash, Ld. Counsel for the accused no. 2 and 3 and Ld. counsel has adopted the same cross- examination.
25. PW-11 Retired SI Shri Ram, s/o Late Sh. Ladu Ram Yadav, R/o Village Chajiyawas, District Mahender Garh, Haryana deposed that on 30.09.2004, he was posted at PS Mangol Puri as SI. On that day, he was on emergency duty from Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 59 of 345 08:00 AM to 08:00 PM. He received DD entry no. 18 at about 11:50 AM. After receiving the same, he went to Balaji Hospital alongwith Ct. Kamal Singh. In the hospital, there was quarrel was going on between the hospital staff and the relatives of the deceased. He called to PS Mangol Puri for police force, After some time, more police force came to the hospital. Thereafter, they took the dead body of the deceased Komal Khatri to SGM Hospital for preservation. He further deposed that on 01.10.2004, in the morning, postmortem examination of the deceased was conducted in SGM Hospital, Delhi. On 30.09.2004, he also seized the documents and some articles from Balaji Hospital vide seizure memo Ex.PW10/A bearing his signatures at point A. He also seized some other documents vide seizure memo Ex. PW10/B bearing his signatures at point A. On 06.10.2004, he received the postmortem report of the deceased which is already Ex. PW1/A, Thereafter, he recorded the statement of the father of the deceased namely Karamvir and he made endorsement on the said statement. In the endorsement, ACP had directed that the further investigation of the matter was conducted by Inspector Azad Singh. He prepared the rukka and handed over it to duty officer for registration of FIR. Further investigation of this case was handed over to Inspector Azad Singh. Thereafter, he was duly cross-examined by Sh. Sunil Ahuja, Ld. Counsel for the accused no. 1 Dr. Anil Handa and witness deposed that he had received the DD entry regarding death of child in the hospital during operation. He reached at the Balaji hospital within 10 minutes. He seized the documents and articles from the hospital at about 01:30 PM. He denied the suggestion that the deceased Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 60 of 345 was taken to general ward from operation theater after the operation. He did not get the record of the doctors and nurses who were attending the deceased. He did not know that whether the deceased was shifted to ICU or not. He did not collect the blood stained clothes / gown of the deceased. He denied the suggestion that Dr. Handa had informed him in writing that one tissue of the deceased was sent for the Biopsy. On 04.10.2004, investigation of the present case was with him. On 30.09.2004, he collected the x ray plate. He deposed that vide Ex. PW1/DA. He had handed over 35 papers+ 2 X rays to the postmortem board on 30.09.2004. He further deposed that each of the 35 papers was numbered and initialed by the doctors of the board. He further deposed that Dr. K.L. Sharma had given him a letter Ex.PW2/X which was numbered as page no. 26 of bunch of paper. He further deposed that at page no. 27 of the bunch of 35 papers, a letter by Dr. Anil Handa which is already exhibited as Ex. PW2/D1 was given to him. He further deposed that that document was also initialed by all the three doctors. He further deposed that he had received the x ray from doctor Anil Handa on 04.10.2004 which is exhibited as Ex.PW10/D alongwith his reply. He had received the postmortem report on 06.10.2004. He had not placed relevant documents which can prove that he had received PM report of the deceased on 06.10.2004. He further deposed that he had prepared document which is already Mark G and now Ex.PW10/E which bears his signatures at point A. He further deposed that he had not made any observation with regard to presence of blood in column no 7 of Ex.PW10/E. He do not remember the time when he prepared Ex.PW10/E. He had Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 61 of 345 received the viscera from the board alongwith the postmortem report on 06.10.2004. No Witness was present with him when he took the viscera. During the deposition seizure memo of viscera box was shown to the witness which is now Ex.PW10/F and after going through the contents contents of the the same witness states seizure memo Ex.PW10/F bears his signatures at point A but he do not remember the names of the witnesses who were present at that time. He further deposed that he had mentioned the names of witnesses in Ex.PW10/F. He further deposed that he do not remember at whose instance site plan was prepared. He had taken the dead body into possession from the ward. He had not examined any doctor staff of the ward from where the body of the deceased was taken into possession. He further deposed that as per the site plan Ex.PW7/A, the dead body was taken into possession from the ICU room from third floor. He had not made any investigation from the doctors of Apollo Hospital from where the deceased took the and was diagnosed. He do not remember if he had collected the biopsy report of the deceased. He further deposed that he has come to know from the letter dated 04.10.2004 of Dr. Anil Handa that the biopsy report was awaited and could be collected on 05.10.2004, he had shown all the articles seized by him including the ET TUBE to the doctors of the postmortem board. He had not seen or seized the blood stained gown of the deceased. He do not know if the tissue of the deceased had been sent to the laboratory for examination. He denied the suggestion that Dr. Anil Handa had informed him that tissue had been sent to lab and could be collected. During the deposition Ex.PW10/E was shown to the witness and witness Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 62 of 345 stated that Ex.PW10/E did not bear his signatures at point C. However, Ex.PW10/E bears his signatures at point D. He do not know who had written contents from point E to F on Ex.PW10/E. He further deposed that there is no endorsement or his signatures of 30.09.2004 on Ex.PW2/D2. During the deposition witness was shown photocopy of a document which is Mark X showing receipt of document and allegedly signed by PW10 on 30.09.2004. He cannot say whether Mark 'X' bears his signatures or not. He further deposed that some crowd had gathered including relatives of the deceased who were very violent. He further deposed that ante dated and ante time documents were created under the pressure of the complainant in order to foist a false case upon the accused persons. Thereafter, he was duly cross examined by Sh. Jeevan Prakash Ld. Counsel for the accused no, 2 and 3 and witness deposed that Dr. Gupta from Balaji Hospital made a call to the PCR number informing that a child had died during the treatment in the hospital. He further deposed that when he visited the hospital quarrel was going on between the relatives of deceased and the hospital staff. He did not ascertain the names of the hospital staff who were present in the hospital. He did not record any statement of any hospital staff present at that time. He also did not take the statement of the complainant at that time on 04.10.2004, he seized the treatment papers. Some papers were also seized on the same day i.e. 30.09.2004. Those papers pertain to the treatment papers. He could not get any clue from those papers as to who were the treating doctors. During the cross examination he was questioned as "Do you agree that you are not only investigating Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 63 of 345 officer in this case but also an eye witness of the conditions of the dead body soon after the death of patient?" Court observed that question disallowed as this was a case of negligence and IO is not witnessed to the fact in issue. He further deposed that he had seen the dead body on the same day at about 02:00-02:30 PM. He had prepared the document Ex.PW10/E in his own handwriting at about 09:00 PM on 30.09.2004. He had handed over the dead body of the deceased to the mortuary at about 03:00-03:30 PM for preservation on 30.09.2004. He further deposed that he did not try to know as an investigating officer about the use of various medicines and ET TUBE from any of the doctor. He did not make any enquiry about the use of ET TUBE from the postmortem board also. He was present in the mortuary at the time of the postmortem but not inside the room where the postmortem was conducted. He further deposed that was called inside the postmortem room. He further deposed that he was shown the dead body of the deceased for identification purpose. He had not recorded any statement of the complainant after receiving the postmortem report on 06. 10.2004. The patient was taken in the OT at 06:00 AM on 30.09.2004. enquired and investigated and found that the patient died at about 11:35 AM on 30.09.2004 did not enquire from the postmortem board as to what steps were to be taken by the doctors in the surgery in question to prevent the aspiration of the blood in the airways he did not enquire as to who and at what interval the patient was examined and monitored in the ward. (which was objected by Ld. APP for the State). He was question as "The postmortem board has not answered either of the part of question no. 4 put to them Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 64 of 345 vide Ex.PW1/D6?" Court observed as question disallowed as question was not specific and he was further questioned as "As per your investigation this is a case of medical negligence under Section 304 A IPC but you recommended registration of the FIR u/s 304 IPC. Please justify your conduct?" Court observed that question disallowed as was very vague in nature.
26. PW- 12 / Rtd. ACP Narender Gualti S/o Late Sh. Himmat Rai R/o: 55 Old Gupta Colony Delhi-09 deposed that on 12.10.2004 he was posted as Inspector Vigilance (N/W). On that day investigation of the present case was transferred to vigilance branch and same was assigned to him. He recorded the statements of complainant Sh. Karambir Khatri and Smt. Krishna Khatri u/s 161 Cr.PC. He seized the temporary registration certificate of Balaji Hospital which was produced by accused Ravinder Kumar Gupta vide seizure memo Ex.PW12/A bearing his signature at point A. he also seized a slide and photocopies of the medical documents of patient master Komal Khatri produced by Naresh Pratap Singh vide seizure memo Ex.PW12/B bearing his signature at point A. He further deposed that all the accused persons namely Ravinder kumar Gupta, Anil Handa and Vivek Kumar Mangla were granted anticipatory bail by the Hon'ble Session Court thereafter he formally arrested all the accused persons vide arrest memo Ex.PW12/C, Ex.PW12/D, Ex.PW12/E all bearing his signature at point A. accused Anil Handa and Ravinder Kumar Gupta were present in the Court (correctly identified by witness on the deposition day). Accused Vivek Kumar Mangla were not present in the Court and on the Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 65 of 345 deposition day Ld. Counsel of the accused Sh. Jeevan Prakash states that he will not dispute identity of accused Vivek kumar Mangla during the trial. He collected the medical board report already Ex.PW2/A from Aruna Asif Govt. Hospital. He send viscera of the deceased master Komal khatri to CFSL Hyderabad. He recorded the statement of SI Chander Shekhar and Ct. Suresh w/s 161 Cr.PC. During the deposition Ld. APP for the state seeks permission from the Court to Cross examination of the witness as he was not disclosing some facts of the present case and he was cross examined by Ld. APP for the state. Witness deposed that he sent treatment record of deceased of master Komal Khatri to the chairman of Medical Board Mortuary Subzi Mandi Delhi for the examination alongwith one request application vide his request application Ex.PW12/F bearing his signature at point A. He further deposed that he seized the relevant documents of Balaji Hospital Pitampura vide seizure memo already Ex.PW12/B. Thereafter, he was duly cross examined by Sh. Sunil Ahuja Ld. Counsel for accused Anil Handa and Sh. Jeevan Prakash Ld. Counsel for the accused Vivek mangla and Ravinder Gupta. And he deposed that the investigation of the case remained with him June 2005. He further deposed that he had collected the biopsy report and slides from Naresh Pratap Singh who was the employee of the hospital. He did not remember if he had shown the slide or the tissue/ report to the doctors of the panel. He had seen statement of Naresh Pratap dated 11.10.2004 in which he mentioned the name of the doctors and staff who have attended the deceased in the operation theater/inward as well as in ICU. He had not joined any doctor or staff of the hospital during the Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 66 of 345 investigation. He do not remember if he have seen any x-ray report in the report. He had not seen the ET tube or life saving drugs or the apparatus used in the operation. He had not compare the opinion of the doctor formed after the request made by him to point out the commission and omission by the operating doctor of the deceased. He denied the suggestion that in the opinion Ex.PW2/K the words written after 12.30 pm in para 1 "on the same date' are not borne out by the medical papers and he had deliberately omitted to mention the same in his investigation in order to falsely implicated in this case. He did not remember if the first postmortem board formed in this case was formed by the joint secretary on the recommendation of the DCP. He did do not remember if he had sent any request to the DCP to forward the same to the Joint secretary for formation of the board. He did not know upon whose recommendation the two doctors Dr. L.M. Sharma , Dr. M. Lal joined the board. He further deposed that as per Ex.PW2/B the aforesaid doctor joined the panel on the recommendation of Dr. K.L. Sharma. He was questioned as "Whether you have knowledge regarding the guideline of Hon'ble Supreme Court that in a case of Medical negligence, expert in that field is required to give his opinion?" wherein Court observed that Question disallowed as that was not a question of fact but question of law as propounded by Hon'ble Supreme Court. He did not remember if he handed over any other paper/report apart from the total 25 papers mentioned in Ex.PW12/E, he did not remember if he had met any doctor of Apollo hospital during the course of the investigation. He further deposed that he had send the Scanned viscera of master Komal Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 67 of 345 Khatri to CFSL Hyderabad. He denied the suggestion that all the accused persons were falsely implicated in the present. He had not obtained any opinion of ENT specialist excepted the members of the medical board.
27. PW-13 / Retd ASI Santosh W/o Sh. Dharam Singh R/o VPO Hirankundna Gaon Delhi-41 has deposed that on 06.10.2004, he was posted at PS Mangolpuri as ASI. On that day, his duty hours were from 09 am to 5 pm. On that day, at about 02.05 pm SI Shri Ram brought original rukka. On the basis of rukka he registered FIR NO. 615/04. On the deposition day he had brought original register containing said FIR. Now copy of same is Ex.PW13/A (OSR) bearing his signature at point A. Thereafter, he made endorsement on the rukka Ex.PW13/B bearing his signature at point A. After registration of FIR he handed over original rukka and copy of FIR to Addl. SHO Azad Singh. Thereafter he was duly cross examined by Sh. Sunil Ahuja Ld. Counsel for the accused Anil Handa and Sh. Jeevan Prakash Ld. Counsel for the accused for Vivek Mangla and Dr. R.K. Gupta and witness deposed that FIR is ante-timed and ante-dated.
28. PW- 14/ SI Hari Singh No. D-4535/Security Vinay Marg New Delhi deposed that on the deposition day he had brought the Reg. No. 19. on 30.09.2004. on 30.09.2004 he was posted at PS Mangol Puri as Head constable. On that day SI Shri Ram deposited medicines, injections in a white pullanda in a non-sealed vide Mud No. 5842. on 02.10.2004 SI Shri Ram deposited a wooden boxes and sample seal in a sealed pullanda Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 68 of 345 vide Mud No. 5854. on 14.10.2004 Inspector N.K. gulati from Vigilance N/W District deposited documents/Samples given by the witness Naresh Pratap Singh S/o V.P. Singh in a sealed pullanda with the seal of N.G. On 25.10.2004 vide R/C no. 398/21/04 the aforesaid wooden box was sent to the CFSL Hyderabad through Ct. Dharmbir Singh and endorsement/receipt from CFSL Hyderabad was deposited. He further deposed that on 19.09.2005 the report from CFSL was received by ASI Satish Kumar and after due entries same was handed over to the ASI Satish Kumar Entries in the Reg. No. 19 is now Ex.PW14/A (OSR) (Colly, running in seven pages) thereafter he was duly cross examined by Sh. Sunil Ahuja Ld. Counsel for the accused Anil Handa and witness deposed and denied the suggestion that he was deposing falsely. Thereafter he was duly cross examined by Sh. Jeevan Prakash Ld. Counsel for the accused Vivek Mangla and RK Gupta. Though the opportunity was given but was not availed.
29. PW- 15 / ASI Dharambir No. 457/OD PS Ranohlla (OD) deposed that on 25.12.2004 he was posted at Vigilance Branch (N/W) deposed that on that day he had brought viscera from Malkhana Mangol Puri from the custody of HC Hari Singh MHC(M) and taken it to the CFSL, Hyderabad for examination vide RC No. 398/21/04. the viscera in wooden box in a seal condition having a seal of CMO SGMH. On 01.01.2005 he received the report from CFSL Hyderabad and same was deposited in the Malkhana. Thereafter he was duly cross examined by Sh. Sunil Ahuja Ld. Counsel for the accused Anil Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 69 of 345 Handa. Though the opportunity was given but was not availed. Thereafter he was duly cross examined by Sh. Jeevan Prakash Ld. Counsel for the accused Vivek Mangla and R.K. Gupta. Though the opportunity was given but was not availed.
30. PW-16 Sh. Karambir Khatri S/o Late Raghu Nath Singh r/o Flat no. 179, Swastik Kunj Appt., Sec:-13, Rohini, Delhi deposed that he is residing at abovesaid address alongwith his family members. On 11.09.2004 he took his child Komal Khatri deceased to clinic of Dr. Anil Handa for the treatment of nose of his child. Thereafter accused Anil Handa referred for the x-ray of nose of his child Komal Khatri and Dr. Anil Handa advised for the operation of his child. On 29.09.2004 he again visited to the clinic of Dr. Anil Handa alongwith his child Komal Khatri and he deposited Cash of Rs. 2000/- at the clinic of Dr. Anil Handa and accused Anil Handa called him to the hospital i.e. Balaji, Deepali Chowk alongwith his child Komal Khatri on 30.09.2004. Thereafter, he alongwith his child Komal Khatri went to the abovesaid hospital for the treatment/surgery of nose of his child at about 6 am on 30.09.2004. At about 6.30 am his child Komal Khatri was taken to the operation theater for the surgery of nose of his child. At that time Dr. Anil Handa, Dr. R.K. Gupta, Dr. Vivek Mangla were present in the abovesaid hospital. He further deposed that after 7 am Dr. Anil Handa who conducted surgery upon his child came out of the OT and Dr. Anil Handa asked him to deposit Rs. 12,000/- for the expenses of the surgery of his child and thereafter he handed over cash of Rs. 12,000/- to Dr. Anil Handa and he told him to deposit the Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 70 of 345 remaining amount at the time of discharge of his child from the hospital. Dr. Anil Handa told him that the operation / surgery of his Aild has been successful and his child would gain conscious after sometime. Dr. Anil Handa and Dr. Vivek Mangla left the hospital after he made payment for the surgery of his child. At about 7.20 am his child was shifted to ward and he saw his child was lying on the stature in upturn condition (ulta leta rakha tha) and he told the staff of the hospital why his child was lying on the stretcher in upturn condition. Staff members told him that anaesthesia medicine was injected to his child and he will gain conscious after 2 hours. He further deposed that he was checking his child on regular basis and he felt that both legs of his child have gone cold "thandi padi hue thi" and nerves/pulse of his child was also not working. He kept asking the staff members of the hospital to assess condition of the child but they again told him that his child would gain Conscious after two hours. When his child did not gain conscious after two hours he made hue and cry in the hospital and then one Dr. who was attending another patient admitted in the hospital told the staff members to shift his child to the ICU's department of the above said hospital. He further deposed that after sometime he came to know that his child has been expired. Thereafter, police official came to the hospital and he gave complaint to the police officials which is now Ex.PW16/A bearing his signature at point B. He further deposed that his child died due to the negligence acts of accused Dr. Anil Handa, Dr. Vivek Mangla and Dr. R.K. Gupta as all the accused did not give proper care while operating / treatment / surgery his child and they left after the operation / treatment / Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 71 of 345 surgery was his child unattended conducted. Accused Anil Handa (present in the Court on the deposition day correctly identified by the witness). Accused Vivek Mangla and Dr R.K. Gupta were not present in the Court and Sh. Jeevan Prakash, Ld. Counsel for both the accused submitted that he was not disputing the identity of both accused persons who were not present in the Court on the deposition day. Dr. Anil Handa (surgeon), Dr. Vivek Mangla (anaesthetist) and Dr. R.K. Gupta (owner / director of the hospital) conducted the operation / treatment / surgery of his child on 30.09.2004. Thereafter, he was duly cross examined by Sh. Sunil Ahuja and Sh. Jeevan Prakash, Ld. Counsel for accused Anil Handa and remaining accused persons and witness deposed that Dr. Anil Handa had told him that the disease of his son. He had taken his son to the Apollo Hospital also where also he was told that his son had adenoid disease. Dr. Handa had told him the same disease which his son was suffering from i.e. adenoid. He did not remember the name of the doctor who had diagnose and treated his child at Apollo Hospital. He further deposed that in Apollo the treatment papers of his child were prepared. He did not remember whether the doctors of Apollo hospital had advised any angiography or CT Scan of his child or not. He had given all the papers of the Apollo hospital at Balaji Hospital who in turn had given to the police. His child did not have nose bleeding at any point of time. He further deposed that he had taken the receipt for the money he had paid to the doctor's of Apollo Hospital. He had not taken any receipt for the money he had paid to Dr. Anil Handa. He further deposed that he had mentioned in his complaint Ex.PW16/A that his son had a small problem Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 72 of 345 (minor). During the cross examination he was questioned as "Did any of the treatment papers of both Apollo hospital and Dr. Anil Handa of his child described the disease as minor problem (mamuli)?" to which he replied as "No." Dr. Anil Handa had told him that it was a case of minor operation. It was know to him that Dr. Anil Handa was an E.N.T specialist. However, he did not know that he had 15 years of experience as E.N.T. Specialist at that time and was attached to three different hospital. He did not remember if he had signed any paper expressing consent to the operation / surgery / treatment of the child. During the deposition, attention of the witness was drawn towards the consent papers Ex.PW16/DX and Ex.PW16/DY and witness states that Ex.PW16/DX and Ex.PW16/DY bear his signature at point A, B and C. He had not shown the persons / staff of the hospital who had misrepresented to him that his child would regain consciousness after two hours to the police. He denied the suggestion that that Dr. Anil Handa had given life saving drugs and tried to resuscitate his child. He did not know who were the doctors who attended his child in the ICU. There were doctors in the ward but he did not remember their names. He again said he did not know if they were the doctors or attending staff in the ward of the hospital. He also made a call to the Dr. Anil Handa when his child did not gain consciousness after two hours. He did not remember the time of the call he made to Dr. Anil Handa. He did not remember the phone no. by which he had called to Dr. Anil Handa. At about 12.30pm he was told by the staff of the hospital that his child was alive but on the deposition day he did not remember the name of the staff. He had Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 73 of 345 not made any complaint against any staff and Doctors of the hospital except accused persons. He further deposed that Ex.PW16/DZ was written by him to the Joint Commissioner of Police on 14.10.2004. He did not remember if it was mentioned in his complaint already Ex.PW16/DZ that accused persons advised him for operation of fake disease. He further deposed that he had filed an application before the Hon'ble High Court of Delhi for cancellation of bail accused which was dismissed. He had seen his child at about 7.20 am and had observed that child was bleeding from his nose. There was blood on the face of his child after operation but he did not remember if the gown of his son was also blood stained. He know that a biopsy report had been called for by the Balaji hospital with respect to disease of his child but he did not remember anything about that report. Dr. Anil Handa had told him that Balaji Hospital was a Govt. Approved hospital, but he had not verified. He did not know on which floor of the hospital his child died but he had not seen him conscious after operation/surgery/treatment. He had felt the pulse of his child was not working at about 7.30 am. He had mentioned in his complaint Ex.PW16/A that he was regularly checking the pulse of his child at about 7.30 am (confronted with Ex.PW16/A where it was not mentioned). Objected by Ld. APP on the ground that Ex.PW16/A is not read over and shown to the witness. During the deposition, the Ld. Counsel for the accused has requested the witness to read over his statement Ex.PW16/A and after reading the same he admits that, that fact was not mentioned in his complaint. He further deposed that he had also not stated in his complaint Ex.PW16/A that his son was brought out of the Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 74 of 345 operation theater with his face down and was bleeding at that time. He had not stated in his complaint that he was told by staff at about 12.30 pm that his son was alive and would regain consciousness. He had also not told in his complaint Ex.PW16/A that he had made a payment to Dr. Anil Handa. He did not remember the name of doctor who directed the staff to shift his child to ICU. He counsel not say what other investigation /checkup ought to have been done by either doctor Anil Handa or by Dr. Vivek Mangla before conducting the operation / surgery / treatment. He did not know anything about the medical science relating to the treatment in question. He denied the suggestion that his child was not died due to the negligence of all the accused persons.
31. PW-17 Retd. ASI Banwari has deposed that on 21.01.2006, he was posted at Vigilance Department NW, Delhi as a Inspector. On that day, investigation of the present case was assigned to him On 30.01.2006, he alongwith Ct. Pawan Kumar went to the house of accused Dr. Ravinder Kumar Gupta and accused Ravinder Kumar Gupta handed over him one memorandum and article of association of Sri Balaji Hospital Pvt. Ltd. And thereafter, he seized the same vide seizure memo already Ex.PW8/A. He has identified accused Dr. Ravinder Kumar Gupta in the Court. He recorded the statement of Ct. Pawan Kumar, HC Mohrar and Ct. Dharambir. He also recorded supplementary statement of complainant Karambir u/s 161 Cr.P.C. I prepared charge sheet of the present and filed before the concerned Court. The witness has been duly cross examined by Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 75 of 345 Sh. Sunil Ahuja, Ld. Counsel for the accused Anil Handa and Sh. Jeevan Prakash, Ld. Counsel for the accused Dr. Ravinder Kumar Gupta and Dr. Vivck Mangla where he has replied that he had recorded the statements of witnesses after the prosecution had placed objections in the matter (objected to by Ld. APP for the State). He denied the suggestion that had not recorded any supplementary statement of the complainant. He accepted the suggestion that Dr. Vivek Mangla is not named in the FIR. He also accepted the suggestion that he had not recorded any statement of any doctor. He has not shown the CFSL report Ex.PW-6/A to the Medical Board or any other doctors.
32. PW-18: Inspector Chandra Shekhar has deposed that on dated 14.10.2004, he was posted at Vigilance Branch (North West District) as a SI. On that day, he alongwith IO/Inspector Narender Gulati went to Tis Hazari Court, for discussion of case file of the present case with Senior PP Sh. Talwar. During the course of investigation he alongwith IO Inspector Narender Gulati went to Aruna Asif Hospital for discussion of case file of the present case with Medical Board constituted in the present case. One person namely Naresh Pratap Singh Admin Officer Balaji Hospital came to our office and he handed over one Admission regular register, photocopy of 0.7 register and copy of ICU register and one bare slide of Biopsy and same were seized by the IO vide seizure memo Ex. 11/A and Ex. 12/B. On 28.12.2004, IO arrested the accused Ravinder Kr. Gupta vide arrest memo already Ex.PW12/D. On 04.01.2005, IO arrested the accused Vivek Kumar Mangla vide arrest memo already Ex.PW12/E. The Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 76 of 345 identity of the accused persons were not disputed during the examination of he said PW. The witness has been duly cross examined by Sh. Sunil Ahuja, Ld. Counsel for accused Anil Handa. Sh. Jeewan Prakash Ld. Counsel for accused Ravinder Kumar Gupta and Vikvek Mangla. The witness has replied that he does not remember whether IO had recorded the statement of Naresh Pratap in his presence when he handed over the above said documents. IO did not show abovesaid documents i.e., ICU record and biopsy report/slide to the medical board in his presence. He has stated that due he is not able to identify the Ex.PW4/D-2 due to lapse of time. He could not identify documents due to lapse of time. Objected by Ld. APP for the State. He denied the suggestion that he is deposing falsely and he did not join the investigation alongwith IO. He did not sit with the medical Board. He does not remember about the time duration Spent by IO with the medical board. He also does not remember if the IO had take facts of the case to the medical board.
33. PW- 19: Smt. Krishna Khatri, W/o Sh. Karamveer Khatri, has deposed that on 30.09.2004, in the morning hours his son Master Komal Khatri was admitted in Balaji Hospital near Deepali, Delhi and on the same day Dr. Anil Handa, Dr. Vivek Mangla and Dr. Ravinder Kumar Gupta conducted the operation of nose of his son. After the operation, his son was shifted to ward but he was unconscious at that time. He and his husband Sh. Karamveer Khatri were checking the condition of his son but he was unconscious at that time. Thereafter, his son was again Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 77 of 345 shifted to operation theater and he was informed that his son had expired. He further deposed that his son had expired due to the negligence of above said doctors. (It was observed by the Court that during the Court proceeding, the witness has started weeping and she has been offered glass of water) She has identified accused Anil Handa. The identity of accused Vivek Mangla and Ravinder Kumar Gupta have not disputed by the accused persons. The witness has been duly cross examined by Sh. Sunil Ahuja, Ld. Counsel for the accused Anil Handa and Sh. Jeevan Prakash, Ld. Counsel for the accused Vivek Mangla and Ravinder Kumar Gupta wherein he replied that he does not know if the police had ever recorded his statement in this case. he does not remember if the police had ever come him to investigate in connection with this case. He further sated that he does not remember if Inspector Vigilance had visited me on 14.10.2004 in connection with this case. he had gone to Apollo hospital for the treatment of his son Komal Khatri. He does not know the name of disease with which my son was suffering. His son was having breathing problems during winter season. He also does not know what tests were carried out for the detection of disease of his son. He had met with Dr. Anil Handa in his clinic. He does not remember the address of his clinic. He does not remember as to the sector in which such clinic was been run by Dr. Handa. However, they knew that Dr. Handa was an ENT specialist. He does not remember if he had ever told the police that myself and my husband had been checking my son after he came out of operation thereafter that he was unconscious. He denied the suggestion that have deposed falsely on this aspect that day. He Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 78 of 345 does not remember on what floor of Balaji Hospital, the ICU exists or the operation theater or the ward of hospital exists (objected to by learned APP). They had asked the doctor present in the hospital to check our son when he was unconscious but he cannot tell the name of that doctor. He further submitted that today, he cannot remember anything about the facts occurred after the demise of my son, he does not remember if there were nurses, ward boys or the doctors near my son when he was lying in ward. She does not remember if efforts were made by doctor to revive my son when he was unconscious. She denied the suggestion that he has been deposing falsely. She does not remember if any of his relative went with her to Balaji hospital on the day of operation i.e. 30.09.2004. She has stated voluntarily that husband was there with her. She does not remember if her sister was with her. She was standing outside the operation theater when her son was brought out of operation theater at 07.50 am. Her child was unconscious at that time. She does not not remember whether the child was breathing or not after she was shifted to ward. She does not remember whether the child was breathing when she had checked the pulse of her son. (It is observed by the Court that witness has started weeping). She does not know whether Dr. Anil Handa came in the ward at about 08.00 am.
34. PW-20 Dr. Kalpana Nagpal, Senior Consultant, ENT & Head & Neck Surgery, Indraprastha Apollo, Sarita Vihar, New Delhi has deposed that on 07.09.2004, he was working at Indraprastha Apollo, Sarita Vihar, New Delhi as a Senior Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 79 of 345 Consultant, ENT & Head & Neck Surgery. On that day, he medically examined the patient Master Komal Khatri, aged about 11 years and he had prepared the ENT report of Master Komal Khatri in his own handwriting which is running into two pages. His detailed report in this regard is already mark 'A' and 'C' and later on exhibited as Ex.PW20/A. As per his report Ex.PW20/A, the patient was diagnosed with enlarged adenoids (adenoidal hyperplasia) and was advised surgery (adenoidectomy) under general anaesthesia. The said witness has not been cross examined after opportunity given.
35. PW-21 ASI Dalbir Singh, has deposed that on 30.09.2004, he was posted at PP Dost, PS Mangolpuri as a DD writer. On that day, at about 11:50 am, he recorded DD no. 18 in original Rojnamcha in his handwriting. However, he does not remember the contents of the same due to lapse of time and he has produced original Rojnamcha containing DD no. 18 as original register has been weeded out vide order no. 358/HAR/OD dated 21.03.2017.Copy of the same is taken on record and mark X. Ld. APP for the State has cross- examined the witness with permission of the Court as witness is not disclosing the contents of the DD no. 18. He accepted the suggestion that at about 11:50 am he received information from wireless set that D.R. Gupta from Balaji Hospital informed that one child has been expired during the treatment and after reducing above/said information in his own handwriting vide DD no. 18 and thereafter he handed over the same to SI Shri Ram. Which is Mark Y. The witness has been duly cross-
Case No. 528685/2016FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 80 of 345 examined by Sh. Jeevan Prakash, Ld. Counsel for the accused Dr. Ravi Gupta and Dr. Vivek Mangla wherein he accepted the suggestion that Dr. Gupta had given the information from the hospital. As per the information which is Mark Y the word DR Gupta could be the short form of doctor or initials of the name of someone. The said witness has not been cross-examined on behalf of the accused Dr. Anil Handa despite opportunity given.
36. Thereafter prosecution evidence was closed duly and matter was adjourned for the statement of accused under Section 313 Cr.P.C. All the accused has explained themselves as:-
STATEMENT OF ACCUSED
37. Dr. Anil Handa, accused no. 1 stated that the report as well as the conclusion drawn was incorrect. The enquiry raised replied by the doctors was also factually incorrect and beyond the scope of postmortem doctors. He admitted that patient Karamvir Khatri alongwith his child visited his clinic and he advised him x-ray of nose to confirm the diagnosis already made at Apollo Hospital. However, he denied that he ever deposited cash of Rs.2,000/- at his clinic and that Balaji Hospital at Deepali Chowk is his hospital. The hospital was government approved hospital belonging to Dr. R.K. Gupta (co-accused). He further denied that he came out of O.T. to ask the complainant (PW-16) to deposit of Rs.12,000/-. Admission of the patient and deposit of fees and hospital charges were taken by the hospital reception and not by the doctor conducting the operation. He admitted that, however, Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 81 of 345 the child was shifted from O.T to the Ward at around 8:00 AM in a conscious condition and he was placed in the lateral position.
He admitted that Naresh Pratap handed over biopsy report and tissue to Insp. Chander Shekhar on 14.10.2004, however, he has no idea about the rest of the content of the question. He admitted that the operation and post operative management was done according to the standard medical procedure accepted all over the world and at the time of shifting of the patient to the Ward, there was no evidence of bleeding and he was shifted in a position wherein any amount of bleeding would have been easily detected and would have come out. He is a qualified ENT surgeon. He have more than 32 years of experience in ENT. He has MBBS and MS ENT qualifications. He has worked at Safdarjang Hospital, and he was working as Sr. medical officer (ENT) at Lady Harding Medical College Specialist and at ESI Hospital, Delhi and Noida before entering into private practice. That the child came to him after being examined and diagnosed at Apollo Hospital and operation of adenoid was also advised by them at Apollo hospital and protocol for the day of surgery and required investigations were prescribed by them on 09.11.2004 when he came to him on 11.04.2004. He in order to confirm the diagnoses got an x-ray of soft tissue naso pharynx done. This was reported by a qualified and experienced radiologist Dr. Duggal of Handa X-ray, as a case of adenoid hypertrophy blocking the naso pharynx. The patient visited at his clinic again on 14.10.2004 and he prescribed some medicines alongwith the operation of adeonoidectomy which was earlier prescribed at Apollo Hospital and asked him to do all the test which were essential before the Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 82 of 345 operation was done and which were also prescribed by the Apollo Hospital. Surgery was done at a Govt. of NCT approved nursing home with all facilities. During surgery, due precaution was taken to prevent blood or any fluid aspirating into the wind pipe by engaging anaesthetist Dr. Vivek Mangla, who gave general anaesthesia to the child and put a tube called ET tube into the wind pipe so that no blood can go into the wind pipe during the operation. The level of consciousness and anaesthesia and maintenance of ET tube in the wind pipe was the job of anaesthetist and he did not take order or advise of the surgeon. The ET tube cannot be removed from the wind pipe if bleeding is still there. In the operation theater, there was staff of the hospital namely OT technician Kuldeep, OT Nurse Vibha, Ward Boy Anil. The surgery was done by a standard procedure accepted world over. After the successful operation, the patient was handed over back to anaesthetist for reversal of anaesthesia and after he was satisfied that there was no bleeding from the operative side, he removed the ET tube. Thereafter, patient was observed in the OT in a lateral position to look for any evidence of bleeding and return of consciousness. After a considerable time of observation and when the patient was conscious with no evidence of bleeding from the sight of operation, Dr. Vivek Mangla ordered shifting of the patient to the ward. In the ward, the child was asked to be monitored in a lateral position with close monitoring of pulse and BP every half hourly by him. He was put in post tonsillectomy (lateral) position so as to detect any bleeding which can occur in post operative period. If bleeding is there, it will come out through nose or mouth and his BP will fall Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 83 of 345 and pulse will rise. He was monitored by Sr. Siza and Alice alongwith Dr. Pravez Ahmed and Dr. Ashish Gautam in the Ward and when he emphasized to them that his pulse and BP should be monitored every half hourly, they asked him till how long, to this, he replied till 12:30 PM when he was supposed to visit again and make a noting on the case file in his last lines of post operative orders and underlined it to emphasize. This statement of his has been misread by the postmortem medical board, as patient was alive at 12:30 PM on 30.09.2004. While that 12:30 PM noting has nothing to do with the separate noting below this where he have written patient conscious, no bleeding to be shifted to semi private ward and this noting was made at the time of shifting of the patient from OT to the ward after Dr. Vivek Mangla cleared the patient for shifting, Moreover, he instructed Dr. Ravi Gupta to intimate the police after the child died at 11:35 AM on 30.09.2004 and he intimated the police at no. 100 at 11:50 AM on 30.09.2004. Police reached the spot / hospital within 10 minutes and took control of all the documents and body of the deceased at around 12:00 Noon on 30.09.2004. He received a phone call from the father of the deceased Komal Khatri at 9:20 AM on 30.09.2004 after he went away from the hospital after the surgery. That his child was not breathing and he reached the hospital within 10 minutes after receiving the call from the father. At that point of time, i.e. 9:30 AM on 30.09.2004 the child was in the ICU under the care of hospital staff, who were trying to resuscitate him and he did everything possible to save his life as was evident in his notings in the case file of 30.09.2004, 09:30 AM. However, in-spite of all efforts, the life of Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 84 of 345 the child could not be saved. He further stressed that at 9:30 AM on 30.09.2004, the child was not bleeding from the operative side. The body alongwith the treatment papers were seized by the IO at around 12:00 noon, and he was asked to prepare a death summary by the police on 30.09.2004 which he prepared and signed at 12:35 PM on 30.09.2004 and handed over the same to the police alongwith ECG. All the papers were not taken by the police. Subsequently, he received a letter from Dr. K.L. Sharma on 04.10.2004 asking for CT Scan and Angiography report, to that, he replied vide his letter dt. 04.10.2004 alongwith self- attested enclosures including all the papers of Apollo Hospital and all the investigations done on the child and two x-rays. He mentioned in his reply to the query of Dr. K.L. Sharma that tissue removed during surgery has been sent for histopathological examination which will confirm the final diagnosis and the same will be available on 05.10.2004 and he requested them to collect the report alongwith the tissue removed during operation before formulating any opinion. The biopsy report was never collected and when they deposited the same to the IO on 14.10.2004, the day of Board formation, the same was not shown to any members of any Board till date. Biopsy report has 100% confirmed that his and Apollo Hospital Doctors' diagnosis was correct and the same operation was to be conducted on him and there is no question of error of diagnosis.
38. Dr. Ravinder, Accused no. 2 stated that accused no. 2 is facing trial for his hospital being vicariously liable which has not been proved on evidence, was holding the post of directorship in Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 85 of 345 the hospital, there was no master/servant, principal/agent or employer / employee relationship with the surgeon or anaesthetist, that surgeon was the master and in commanding authority, that patient was not admitted with the approval and consent of accused no. 2, that the patient choose accused no. 1 as a surgeon without the choice of accused no. 2, that pre-intra - and post-operative care and management was the responsibility of the surgeon and it was the surgeon who assigned duty to assist the nursing staff, that there was no contract of employment with the surgeon, that accused no. 2 did everything at his command and within his hospital and made available to all the doctors and paramedical staff and further that the medical board formed was an eye wash. He was Director of Shri Balaji Hospital but he did not had any part in the treatment of the patients neither that particular patient was admitted with his approval because all the admissions were done by the hospital medical superintendent. He came to know about this particular patient when he received a call from the hospital that a child Komal Khatri was serious and was shifted to ICU on 30.09.2004 at around 9:30 AM. He rushed to the hospital to make sure that all possible help could be given to save the child. He did not know anything about the treatment (pre-operative / post-operative and surgical) given to the patient as he did not treat the patiently. He was told later that the patient was brought to the hospital by Dr. Handa for adenoidectomy. He look after only administrative work of the hospital. He never met the patient or his attendants before or after admission to the hospital and all the treatment responsibility is that of the treating surgeon. He has no role in surgery. He was not present in the Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 86 of 345 hospital at 7:00 AM. The matter concerned to Surgeon and anaesthetist. He did not know anything about the treatment. Prosecution witnesses have misconceived the fact. He was not at all involved in the treatment at any stage. They have falsely implicated him and the evidence are not scientifically relative and the cause of death is disputed. No statement in charge or otherwise as to legal condition required by law to be fulfilled in the particular case to constitute vicarious liability of hospital and much less the vicarious criminal offence. Hospital has not made accused. Therefore, it is not permissible in law to prosecute director. That there can be no presumption against the owner in criminal law in a prosecution for an offence under section 304-A, the mere fact that an accused contravenes certain rules or regulations in the doing of an act which causes death of another, does not establish that the death was the result of a rash or negligent act or that any such act was the proximate and efficient cause of the death. Hospital in present case neither vicarious liable nor its directors cannot be prosecuted for negligence of their doctors- The dead body was handed over to the police. Police after inspecting the dead body, prepared the death report which negated any bleeding any part of the body, cloths etc (death report Ex PW-10/E at serial no-7) The postmortem was done after 32 hours. During this period, the condition of the body changed during transit from hospital to the mortuary and inside the mortuary. One of the tissue from operating site (as no stitch is possible at such site) started bleeding due to various jerks and rough handling. Thus, there was change in the condition of the dead body at the time of autopsy and when seized. Even the Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 87 of 345 written complaint of the complainant does not utter a word about bleeding. The treatment records no where says bleeding as being pointed out by the PM Board. The PM Board did not enquire from the police as to the condition of dead body at the time of death. Postmortem Board misguided themselves and did not apply their mind and medical knowledge. Blood was subjected to pathological test and for any other scientific test to know if the same was ante mortem or postmortem. Accordingly, postmortem arrived to a wrong conclusion as to cause of death being Asphyxia consequent to chocking of wind pipe so drawn by the PM Board. Further, the death cannot be attributed to asphyxia in view of the various other findings so noted by the team during post mortem such as the eyes have been found to be closed. Had the patient would have died due to Asphyxia, (i) the eyes of the patient would have remained open and (ii) further brain and abdominal organs must have been found congested. But that is not the case/finding in PM report.
39. Dr. Mangla, accused no. 3 stated that postmortem report is not an original report. That the cause of death as has been pointed out in the postmortem report is under serious doubt and has prayed to take into consideration the artifact effect, that the postmortem board has not preserved blood and close or even the blood clots or have sent them for any scientific investigation. It has not been pointed out by the prosecution as to what adequate timely care has not been taken up by accused no. 3. That the duty of surgeon and anesthetics are limited and out of spare of each other, that due homeostasis was achieved before patient was Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 88 of 345 brought to his senses and were shifted to ward, even when condition became critical, operation theater was used as recovery room for the reason that operation theater is better equipped to manage any adverse situation. That accused no. 3 have assisted more than 50,000 surgeries and it is so way that the opinion persist that the operation theater notes have not been written elaborately. No anesthetic or poisonous medicine or substance was found as evident from the report of CFSL Hyderabad. The patient did not of any anesthetic medicine and the proof of which is already on record, that inquest letter dated 30-9-2004 so stated to have been received on 01-10-2004, as per PM Report dated 01-10-2004. ExPW-1/A has a noting at point Ex W-1/DA that 35 papers and 2 X rays has been thereon. In fact no such papers were handed over till 1-10-2004. These and papers X-rays were given on 04-10-2004 in response to the written direction of the chairman to the police vide letter dated 4-10-2004. This was another evidence to show that Ex.PW-1/A is prepared not before on 4-10-2004, whereas postmortem was conducted on 1-10-2004. Postmortem report Ex.W-1/A is, therefore, manipulated for the reason that police had no X-ray as on the date of 01-10-2004 and the same could not handed over to the team heading the postmortem along with the inquest papers nor the same be capable of being returned. The x-rays were handed over to the I.O. On 04-10-2004 in pursuance of his request. In fact, on 4-10- 2004 Dr. K.L. Sharma wrote a letter to the Investigating officer to obtain certain information from the treating doctor, which was handed over to the surgeon (accused-1) for compliance. Accused- 1 in response of the said compliance, furnished all the papers Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 89 of 345 including the original two X-ray films. But the postmortem has discussed about the X-ray in its report dated 01-10-2004, three days before the same were handed over. subsequent management of patient As far as opinion as to error of the subsequent management of patient by the surgeon and anaesthetist as noted by PM Board is because of the wrong view formed by them that of the present case might have been ANGIOFIBROMA and not ADENOID. The subsequent management of patient in Angiofibroma is more intensive than patient adenoid. Opinion as to post-operative error is solely based on wrong finding as to artefact presence of blood on face, body and clothes and in the windpipe and airways. The PM Board expected the surgeon for recommending some more tests like CT scan and angiography to rule out got ANGIOFIBROMA and before confirming diagnosis of ADENOID. Surgery for ANGIOFIBROMA puts the patient a great risk of huge bleeding for which intensive post operative care is required. The issue relates to the surgeon- Dr Anil Handa and he was given to understand that he has adequately answered the same to the satisfaction of the Hon'ble Court. Further, PM Board, aforesaid observation in Ex.PW1/B in neither based on any finding of the Postmortem, nor any histopathology report which the postmortem board could have obtained. In fact, the Post Mortem has failed to take the specimen of said tissue of raw surface of naso pharyngeal area, which was oozing blood and ought to have sent for biopsy which must have confirmed whether the surgery so conducted was for ADENOID or for ANGIOFIBROMA. Without this, it was not proper on the part of the medical Board for post Mortem to condemn or question the Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 90 of 345 preoperative diagnosis for treatment. Had the board done so, PM Board would not have questioned so and misdirected the prosecution. The said observation is based on the denial of the surgeon for any necessity of the tests like CT scan and angiography, as there was no history of bleeding from nose. The surgeon so explained by way of his written statement dated 4-10- 2004 Ex.PW3/DA to PM Board through SHO, PS Mangolpuri and further justifying the same. He did not make any written statement. As already stated above, he, Vivek Mangla being an anaesthetist in the present case has, therefore no role in diagnosing the patient, and planning the treatment. Therefore, this is not any circumstance against him. Otherwise also, the histopathology report dated 15-9-2004 Ex PW-4/DA confirms the present case of being ADENOID and not ANGIOFIBROMA. The PM Board had no occasion to have a look on the said histopathology report dated 15-9-2004. IO forwarded the queries vide letter dated 30-9-2004 (Ex.PW-1/D6) and PM Board replied the same on 1-10-2004 i.e. on the day PM report Ex.PW-1/A was prepared. Thus, the present case relates so ADENOID, and there was no error in the subsequent management as the patient of ADENOID. he, being an anaesthetist was told that, the present surgery is for ADENOID and accordingly, he managed the patient as per standard required for adenoid. Any expectation for management of adenoid patient with standard meant for ANGIOFIBROMA does not arise. There being no complaint of bleeding either in record of the hospital treatment or by complainants at any stage or even in the death report prepared and signed by the police while seizing the dead body. Therefore Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 91 of 345 such reply of PM Board was without any basis. Otherwise also, Dr K. Goel (PW-1), on 29-6-2013 has deposed that they have not condemned the doctor for any not advising MRI and angiography or CT scan. Further in answer to question no-5 during deposition on 29-6-2013 he showed his ignorance as Vivela kr. His prepared joint report mark Answer. The circumstances so pointed out does not lead to proof of the guilt against him (accused no-3). The constitution of medical board at the instance of medial superintendent, Asaf Ali Hospital is factually not correct and further is completely eye wash. No such order of constitution of medical board is placed on record. Otherwise also, the impugned medical board so referred is not constituted properly and legally for being headed by same person who headed the postmortem board. In all fairness, medical board should not consist of any member of the postmortem. Further, no notice for constitution of such medical board placed on record and is questionable. Further, Gag reflex is not done in any surgery and in particular adenoid surgery being Any test for GAG reflex can cause contraindicated. life threatening effect. Further, finding of 200 ML blood in stomach in PM report and further stated to have travelled from operating site is because of conscious efforts and movement of muscle known as SWALLOW REFLEX. Swallow reflex is much stronger reflex and therefore comes after cough reflex and gag reflex. Swallow causes reflex closure to glottis, elevation of the larynx, and a transient cessation of respiration. These complex motor acts implicate numerous muscles are activated during the act of swallowing. Swallowing function, in humans, is very complex. Swallowing plays, not only an important role in food Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 92 of 345 digestion, but also a major role in preventing the entrance of food and/or other materials into the lower respiratory tract. Thus, in view of the presence of swallow reflex in present case, non mention of the fact as to presence of cough and gag reflex in his treatment note is immaterial and cannot be inferred for the death of Master Komal Khatri. That PW-4 Dr L.M. Sharma (senior consultant anaesthesia & Critical care), who happened to be one of the members of the alleged medical board has admitted in his cross examination dated 04-04-2009 that GAG Reflex is not tested. This supports that Gag reflex in adenoid surgery is contraindicated. In the present case, as per the medical books and the standard practice, once the patient regains consciousness, checking of gag reflex and cough reflex repeatedly by laryngoscopy is not desirable and contraindicated as it could cause bleeding from the operative site. It can also induce vomiting. Other side effects up to the extent of brain haemorrhage could happen. That there was no circumstance so pointed out in his question no-14 lead to proof of the guilt against him (Dr Vivek Mangla accused no-3). He explain the circumstance herein as under- i. PW16 Karamvir Khatri being the interested witness is denied that the patient was shifted in the ward at 7-20 am. At that time, the patient was in OT. The patient was shifted in the ward at about 7-55 am as stated above. This is also mentioned in the treatment note. There were CCTV in the hospital and outside OT. Prosecution has not brought this best evidence on record. Prosecution has not examined the other patients in the ward on this important issue. The patient was conscious and in senses, though feeling drowsy and sleepy. The Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 93 of 345 patient responded the stimulation and answering. It is natural that patient being having undergone surgery trauma, felt tired and had tendency to sleep, which is desired medical condition. Once all the vitals are normal and patient regains conscious and there was no bleeding from operating site, the patient was ordered to be shifted in the ward. The surgeon and himself both had satisfied that there was no bleeding and the patient was fit to be shifted in the ward for further monitoring. With that his duty as anaesthetist was over. Thereafter he left the hospital with due intimation and consent of the surgeon. This is the standard practice of the anaesthetist that anaesthetist do not remain in the ward until situation so demands. Surgeon visited the ward thereafter and examined the patient and found there was no bleeding and accordingly he directed the doctors/medical staff in the ward to monitor every half hour. He did not know when surgeon left the hospital. He admitted that patient suddenly became cyanosed (bluish discoloration) and was immediately taken to ICU. At about 9-20 am- He received a call from surgeon asking to come to hospital as patient is in ICU and in critical condition. The surgeon sought him help and he rushed to hospital. At about 9-25 AM, Surgeon Dr Anil Handa (accused -1) also came to ICU. Soon thereafter at 9-30 am he, DR VIVEK MANGLA (accused-
3) also reached to the hospital. Surgeon along with the team of doctors of the hospital was already engaged in resuscitation of patient and by this heart of the patient was already revived. At that junction, he Dr Vivek Mangla also joined the resuscitation team. There was no bleeding. The patient was intubated and patient was put on ventilator. All efforts of resuscitation were Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 94 of 345 done. All life savings measures taken. At that junction also, no visible bleeding was noticed by him during the entire duration of treatment in ICU. All life entire saving measures taken but patient's life could not be saved. Patient declared dead on 30/9/2004 at 11: 35 am. The death of the patient does not mean that the treatment was wrong or there was any act of commission omission on part his or the surgeon. That PW19 Krishana Khatri is the mother of the deceased patient and therefore interested witness. His explanation to question no-14 be read as part of this question also. The patient was conscious when being shifted to the ward. He got her to talk to her just outside the OT and she talked to the patient. According to medical definitions, a normal level of consciousness means that a person is either awake or can be readily awakened from normal sleep. Consciousness identifies a state in which a patient is awake, aware, alert, and responsive to stimuli. Dr Ravinder Gupta has no role in the treatment. No doubt the patient unfortunately died in ICU same day but that does not infer any negligence on the part of the surgeon (accused-1) or him (accused no-3). As to answer to anything else, the accused no. 3 had stated:-
(1) Firstly, About sudden emergency in ward and possible causes of death. The patient died due to cardiac arrest at 11- 35 am. What were the factors responsible at 9-15 am that led to cardiac arrest at 11-35 am in present case is a subject matter of speculation. In Medical science, there may be a number of conditions responsible such as-
(i) It MAY BE DUE TO SUDDEN LOSS OF BREATH DUE TO PRE-EXISTING SLEEP APNEA SYNDROME.Case No. 528685/2016
FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 95 of 345 This pre existing disease has been noted in the Apollo hospital treatment papers. The patient was known to have severe breathing problem even before the surgery. Sleep apnea is a potentially serious health disorder in which breathing repeatedly stops and starts during sleep. In some cases and intervals, brain does not send the proper signals to muscles that control breathing. It may be noted that as per RMO notes in ward, the patient was observed sleeping at 8-30 am. Sleep apnea is a serious medical condition. Complications can include sudden drops in blood oxygen levels that occur during sleep apnea, increase blood pressure and strain the cardiovascular system and can lead to sudden death from an irregular heartbeat.
(ii) Surgical complication of second haemorrhage and internal bleeding in the ward, which might have gone unnoticed. That is possible when the patient is conscious, his all reflexes active and accordingly has swallowed the blood in his stomach through his food pipe and let nothing came out through nose and mouth. There is no other standard means to deduct such bleeding. Post adenoid bleeding is uncommon (5%) but a potentially life threatening event. Because of such swallowing large quantity of blood (200 ml as per PM finding), Patient might have gone into HYPOVOLAEMIC SHOCK due to sudden loss of such quantity of blood.
(iii) any other preexisting disease which was not known;
(iv) Adverse reaction of any drug, if administered in the ward. He has not seen the details of medicines and drugs Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 96 of 345 administered in the ward by RMO/sister in the ward. Postmortem ought to have been in depth with more scientific approach. In present case, the PM conducted was conducted with predetermined mind and further was incomplete, and unscientific to deduct the real cause of death. There was no postmortem of several vital organs.
(v) any other medical accident, which he may not be able to predict (II) No medical negligence held by Delhi Medical Council on the same set of facts. Secondly, in present case, the Directorate of Health had referred the case to Delhi Medical Council a statutory Body to constitute the medical Board. Accordingly, the medical Board was constituted by DMC. Delhi medical council after perusing the postmortem report and all other relevant documents and after giving due hearing has given clear cut finding that there is no case of medical negligence in the matter. The complainant did not appear before DMC despite service of notice. It is admitted position that complainant has not filed any appeal against the order of the DMC as provided under the Act despite of having knowledge in 2006 itself. The order of DMC is under a statute and by a quasi judicial authority after giving right of hearing and after considering all materials. As such DMC order Report shall prevail over medical Board. Otherwise also, if there are two sets of opinion if one goes in favour of the accused, the benefit of the same will be given to the accused. Medical science has conferred great benefits on mankind Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 97 of 345 but these benefits are attended by considerable risks. Every surgical operation is attended by considerable risks. They cannot take the benefits without taking risks. Every advancement in technique is also attended by risks. (III) Thirdly, he did not understand what was charge against him. The CHARGE is not specific and further has been expressed in generic and vague terms. The Notice u/s 251 dated 9-9-2008 in fact mentioned the word "during the operation" but the amended NOTICE dated 19-2-2011 is generalized and says, omitted to take such care as to prevent danger or injury to the life of the patient child Komal Khatri during the course of said surgery and the after the surgery due to which gross medical negligence on all of his part, child Komal Khatri died. There are so many stages of the treatment- such as, diagnosis stage, preoperative stage, intra-operative, intensive post anaesthesia care immediate after the surgery, post- operative care in the ward, handling emergency in ICU. Prosecution is not sure about the stage at which negligence has occurred. THE NOTICE / CHARGE fails to specify the act of commission or omission on his part and the stage of treatment. He has discharged the burden by explaining as to what he has done in OT and ICU. Something wrong has gone all of sudden while the patient being in ward, where he have no role. Child died in ICU. Charges are therefore groundless against him on merit and he is innocent. There is no case of any negligence against him. Fourthly, investigation was faulty and best evidence Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 98 of 345 withheld by the prosecution. OT TECHNICIAN (RAJESH) was present throughout the surgery and during the post anaesthesia intensive care in OT itself and further he shifted the patient to the ward and handed over the patient to the RMO in the ward. HAD police EXAMINED RAJESH (OT technician), TRUTH WOULD HAVE COME to the fact that the deceased patient was shifted to ward in conscious condition with stable parameters. Rajesh was material witness in this case. But he was told he is no more. Prosecution had all opportunity to examine the RMOs and nurses in WARD & ICU. Prosecution could have also examined other doctors in the ward. Prosecution has also not examined any other patient admitted at that time in the ward of the deceased and / or their attendant in the hospital. Prosecution could have seized the CCTV footage outside the OT, gallery, ward, inside ICU of the day of surgery of the hospital concerned. They did not do so because footage could have revealed the truth that the deceased patient came out from OT in conscious and alive and was having respiration at his own without any external aid. Prosecution could have noted the readings from the monitors in OT and ICU of the date and time indicated which must have recorded the complete history of vital of the deceased patient during the treatment and must have been available for few days. Prosecution has not taken any professional assistance. Medical Board failed to act with professional acumen. Now the hospital is closed down since after this incidence, he was not able to trace them at Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 99 of 345 all. Otherwise, he could have helped the Court to dig the truth and bring the same on record.
(V) Lastly, complainants were vindictive in the matter. They have failed to appreciate the medical science. The normal human tendency is to pick fault with doctors whenever there is a death during treatment, mere because doctors are holding the smoking gun in their hands at that time. He performed his job to the best of his ability with due care and caution and with ordinary skills and practice. He has been wrongly dragged. His name was not even FIR. In medical science there is always difference of opinions. Hence, merely because there is a body of such opinion that takes a contrary view, he cannot be held negligent.
DEFENCE EVIDENCE
40. Thereafter matter was adjourned for defence evidence wherein 7 witnesses were examined.
41. DW-1 Dr. Girish Tyagi, Secretary Delhi Medical Council, Ground floor, B- Wing, B Block- 1, DMRC, IT Park, Shastri Park, New Delhi-110053 deposed that he have brought the documents namely DMC/14/2/Comp. 179/2006/24925 dated 31.08.2006 address to the Medical Superintendent Nursing Home, Directorate of Heath Services, Government of Delhi on the subject complaint against Balaji Hospital in respect of death of Master Komal Khatri, S/o- Sh. Karamveer Khatri on Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 100 of 345 30.09.2004. He produced the said letter dated 31.08.2006 signed by Dr. R.N. Baishya, Secretary on behalf of Delhi Medical Council as Ex.DW-1/1 (OSR). He also produced the letter no. F- 23/99/04/DHS/NH/32714 dated 08.10.2004 written by the Director of Health Services, Govt. Of NCT of Delhi to the Registrar, Delhi Medical Council, New Delhi, directing DMC to inquire into the alleged medical negligence, if any on the part of the treating doctors and the staff of Balaji Hospital and submit the report to the Directorate The said letter is Ex.DW-1/2 (OSR). He also produced the handwritten report of ENT expert Dr. Sunil Nangia, dated 25.07.2006 and the same is Ex.DW-1/3 (OSR). He also produced the proceedings of the Disciplinary Committee of Delhi Medical Council, dated 14.06.2006 in complaint no. 179 in the aforesaid matter as Ex.DW-1/4 (OSR). He also produced the proceedings of the disciplinary committee of the Delhi Medical council, dated 25.07.2006 in the same matter, which is Ex.DW- 1/5 (OSR). Witness was cross-examined by Ld. APP for the State wherein witness deposed that he have no personal knowledge in respect of the contents of the documents produced by him that in the Court. He admitted that he have not brought notice/documents, which shows that any notice was served upon Sh. Karamvir, father of the deceased and volunteered that this particular notice as mentioned in Ex.DW-1/5 was not summoned.
42. DW-2 Sh. Ganesh Prasad, Record Keeper, Delhi Medical Council, B Wing, PS Mangolpuri Block 1, DMRC IT Park, Shastri Park, New Delhi -53 deposed that he have brought the summoned record. He had brought an application Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 101 of 345 under RTI by Dr. Anil Handa received in DMC dt. 26.07.2019. Copy of which is Ex.DW2/A (OSR). The public information officer gave a reply to the said RTI application on 09.08.2019 under his signature, the copy of the said reply is Ex.DW2/B (OSR) duly signed by the Registrar. He had also brought with me the certificate of registration, which is a computer generated copy of the Certificate of Registration of Dr. Anil Handa s/o. Mohinder Lal Handa registered vide registration no.9599 of 24.07.2001. This is also signed by the registrar Delhi Medical Council on 25.06:2021, the copy of the same is Ex.DW2/C (OSR). He had also brought with me the RTI application of Dr. Anil Handa dt. 13.08.2018 received on 21.08.2018, copy of the same is Ex.DW2/D (OSR). In reply thereof, the information was furnished by the Registrar, DMC on 18.09.2018, copy of which is Ex.DW2/E (OSR) which is duly signed by the Registrar. In compliance of the said RTI application, the DMC has also forwarded a report by the office superintendent dt. 21.07.2009 received in the office of DMC on 29.07.2009. The copy of the same is Ex.DW2/F(OSR) alongwith this application, the applicant Dr. Anil Handa had forwarded the order of the DMC dt. 23.12.09, 13.05.2008, 02.06.2009 which are retained in the office of the DMC and are marked as Mark A, B and C respectively. The record of these documents is maintained in the regular course of business with the office of DMC. Witness was cross- examined by Ld. APP for the State wherein witness deposed he had no personal knowledge of the contents of documents produced by me in the Court today. The name of the Registrar is Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 102 of 345 Dr. Girish Tyagi. He had seen the signature of Dr. Girish Tyagi during the course of his duty.
43. DW-3 Ms. Anjali Rana, Section Officer National Medical Commission, Office at Pocket 14, Sector-08, Dwarka-110077 deposed that he had brought with me the photocopy of summoned record pertaining to an application of Dr. Anil Handa datd 21.08.2018 copy of which is Mark DW3/A. In response to the said application the RTI information was given on 23.10.2018 by Dr. Parul Goel Deputy Secretary which is Mark DW3/B. The said record is the true copy of the information retained in our office records. The counter part of original of this information is forwarded to the applicant who had sought the RTI information. On 01.06.2022 she had brought the original / office copy of the reply dt. 23.10.2018 which is signed by Dr. Parul Goel, Deputy Secretary & PIO. This record is maintained in regular course in our office. The same is EX.DW3/DB (OSR). Witness was cross-examined by Ld. APP for the State wherein witness deposed he did not know anything regarding the contents of Ex.DW3/DB
44. DW-4 Sh. Ajay Dass, Junior Assistant Raotula Ram Hospital, Jaffarpur, Delhi deposed that he had brought with him the original record pertaining to the RTI information sought by Dr. Anil Handa vide application dated 21.08.2018 in reply to the same public information officer Sh. Anil Bhola (Administrative Officer) has sent the RTI information on 25.09.2018 copy of which is Ex.DW-4/A (OSR). This Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 103 of 345 information is signed in original by Anil Bhola and he identified his signatures however, he had not seen him signing. This is the true copy of the record / RTI information maintained in our office in regular course of business. Another RTI information dated 19.09.2018 was given on requisition of Dr. Anil Handa copy of which is Ex.DW4/B (OSR) which is signed by Sh. Anil Bhola. This is the true copy of the office record maintained in our office in regular course of business. Along with this we had forwarded to the applicant the order dated 02.06.2009, of the Secretary DMC copy of which is Mark X. Witness was cross-examined by Ld. APP for the State wherein witness deposed that he had no personal knowledge with respect to the documents produced by him in Court. He has been working in the office since 2016.
45. DW-5 Dr. Kiran Agarwal, Director Professor, Lady Harding Medical College deposed that he had brought the summoned record i.e. RTI application dt. 24.09.2018 moved by accused Dr. Anil Handa seeking information about the histopathalogy examination. The said application received in the office is Ex.DW5/DA and the reply to the same was given to him on 26.09.2018 which is signed by me and is Ex.DW5/DB. Witness was cross-examined by Ld. APP for the State wherein witness deposed to the question 'On what basis you have gave reply to the RTI application?' to which she answered that she had given on the basis of my experience after reading the literature
46. DW-6 Sh. Kamal, Junior Assistant, Delhi Secretariat, IP Estate, New Delhi deposed that he had brought the Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 104 of 345 summoned record i.e. RTI application dt. 25.10.2018 moved by accused Dr. Anil Handa seeking information through RTI. The copy of which is Ex.DW6/DA. It is signed by the Section Officer, Health and Family Welfare Department. The copy of reply to this application is issued for the purpose of production under the signature of the Deputy Secretary Sh. Raj Kumar. The copy of which is attested by the Deputy Secretary and is now Ex.DW6/DB. The entire record pertaining to the RTI application is regularly maintained in our office. He identified the signature of Deputy Secretary Sh. Raj Kumar, Health and Family Welfare Department as he had seen him writing and signing. Witness was cross-examined by Ld. APP for the State wherein witness deposed that he did not know anything regarding the contents of Ex.DW6/DA. Witness was put question as to 'How did he identify the signature of Deputy Secretary Sh. Raj Kumar?' to which he replied as Dr. Raj Kumar had signed the document before him.
47. DW-7 Sh. Gaurav Kumar, Senior Assistant, Aruna Asaf Ali Hospital, 5, Rajpur Road, Delhi deposed that he had brought the summoned record i.e. RTI application dt. 21.08.2018 moved by accused Dr. Anil Handa seeking information through RTI which was duly given to him by Dr. V.P. Khari, Public Information Officer on 06.10.2018. He identified the signature of Dr. V.P. Khari since he had seen him writing and signing during the course of my official duty. The copy of which is Ex.DW7/DA. The reply of the same is Ex.DW7/DB. He had also brought i.e. RTI application dt. 21.08.2018 moved by accused Dr. Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 105 of 345 Anil Handa seeking information through RTI which was duly given to him by Dr. V.P. Khari, Public Information Officer on 06.10.2018. I identify the signature of Dr. V.P. Khari since I have seen him writing and signing during the course of my official duty. The copy of which is Ex.DW7/DC. The reply of the same is Ex.DW7/DD. Witness was cross-examined by Ld. APP for the State wherein witness deposed that he did not know anything regarding the contents of Ex.DW7/DA and Ex.DW7/DC. He has been working in this office since 2020.
48. Thereafter Defence evidence was closed and matter was adjourned for final arguments. This case was transferred to this Court by order of Ld. CMM, North West on 31.10.2022 and thereafter the arguments took place for about 28 hours spread over 10 days from 2 pm to 4-30 pm on 17-12-2022; 22-12-2022; 02-01-2023; 03-01-2023, 04-01-2023, 05-01-2023, 06-01-2023, 11-01-2023, 12-01-2023 (2 pm to 7 pm), 13-01-2023 (2 pm to 6- 30 pm). Matter was reserved for judgment. Certain clarifications were sought on 13.02.2023. Thereafter, matter was again was reserved for judgment for 14.03.2023.
49. I have heard Ld. APP for the State as assisted by Ld. Counsel for the complainant Sh. Vijay Singh. I have also heard Sh. Sunil Ahuja, Ld. Counsel on behalf of Accused no. 1 (Dr. Anil Handa) and Sh. Jeevan Prakash, Ld. Counsel for Accused no. 2 and 3 ( Dr. R.K. Gupta and Dr. Vivek Kumar Mangla). I have also gone through all the voluminous Judgments, medical literature, expert excerpts and relevant documents as well as Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 106 of 345 written final arguments and queries put forth by the Court which runs in more than 1500 pages. It is pertinent to mention herein that this Court has chiselled out extraneous material that has been put forth by the parties and only those which are permissible within the ambit of Indian Evidence Act, 1872 (hereinafter referred as Evidence Act) and have been proved with an opportunity to rebut has been taken into account. It is pertinent that dictum of Hon'ble Supreme Court has been followed strictly as in the case of Union of India v. W.N Chadha7, wherein Judge is duty bound not to rely upon extraneous material. The observation runs as follows:-
...... No doubt every Court has its plenary powers to deliberate upon every issue agitated before it as well as any other issue arising on the material placed before it in the manner known to law after giving a prior notice and affording an opportunity of being heard. This power of discharging the statutory functions whether discretionary or obligatory should be in the interest of justice and confined within the legal permissibility. In doing so, the Judge should disengage himself of any irrelevant and extraneous materials which come to his knowledge from any source other than the one presented before him in accordance with law and which are likely to influence his mind one way or the other. In this context, it may be appropriate to recall the following view expressed by Benjamin N. Cardozo in his treatise "The Judge as a Legislator" i.e "The Judge, even when he is free, it still 7AIR 1993 SC SA1082 (1111): (1993) 1 SCC 154: 1993 CrLJ 1859 (1993) 1 Crimes 308.Case No. 528685/2016
FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 107 of 345 not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system."
APPRECIATION OF LAW AND EVIDENCE LAW ON NEGLIGENCE
50. [304A. Causing death by negligence. --Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.] INTENTION, RECKLESSNESS AND RASHNESS
51. The precise boundary between intention and recklessness is that cases where a result was not the accused's purpose but it was foreseen as virtually certain. It is clear that if the result was the accused's purpose then the result is intended. If the result is not the accused's purpose but is foreseen as a possible result of his actions then the defendant is reckless. The borderline between intent and recklessness is where the accused foresees the result as virtually certain. The difference between recklessness and negligence is fairly straightforward. To be reckless the accused Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 108 of 345 must foresee the result, while for negligence the only question is whether the accused acted as a reasonable person would. In the cases of Section 304A IPC, there must be proved that the rash and negligent act of accused was proximate cause of the death. There must be direct nexus between the death of the person and the rash and negligent act of the accused. Remote Nexus is not enough. Reasonable foresight is the criteria of negligence. Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so and that may cause injury but without intention to cause injury or knowledge that it will probably be cost. There is a breach of positive duty. Rashness and negligence is a matter of fact which has to be established during evidence. It is also well settled that merely because a person contravenes some rules and regulations to does not make him so liable for rashness and negligence. To make a person liable for criminal negligence or rashness, it is necessary to show a nexus between the wrongful act of an accused and the injuries received by another. The injuries suffered must be immediate result of wrongful act and not a remote consequence. The act causing that must be causa causans and it is not enough that it may have been causa sine qua non8.
Doctrine of Causa Causans
52.Doctrine of causa causans has been well illustrated in Sushil Ansal v. State9, passed by Hon'ble Supreme Court of India and it is being reproduced herein as:-
8 See Penal Law of India by Sh.H.S.Gour 11th edition, Volume 3 ,P. 3021-3049 9(2014) 6 SCC 173 : (2014) 3 SCC (Civ) 343 : (2014) 2 SCC (Cri) 717 : 2014 SCC On Line SC 206 at page 252 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 109 of 345
(v) Doctrine of causa causans
80. ...under Section 304-A IPC viz. that the act of the accused must be the proximate, immediate or efficient cause of the death of the victim without the intervention of any other person's negligence.
....
Division Bench decision of the High Court of Bombay in Emperor v. Omkar Rampratap [(1902) 4 Bom LR 679] where Sir Lawrence Jenkins speaking for the Court summed up the legal position in the following words:
"... to impose criminal liability under Section 304-A of the Penal Code, 1860, it is necessary that the act should have been the direct result of a rash and negligent act of the accused and that act must be proximate and efficient cause without the intervention of another negligence. It must have been the causa causans; it is not enough that it may have been the causa sine qua non."
...
81. ...... criminal liability under Section 304-A IPC shall arise only if the prosecution proves that the death of the victim was the result of a rash or negligent act of the accused and that such act was Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 110 of 345 the proximate and efficient cause without the intervention of another person's negligence.
...
82. To sum up : for an offence under Section 304-A to be proved it is not only necessary to establish that the accused was either rash or grossly negligent but also that such rashness or gross negligence was the causa causans that resulted in the death of the victim.
83. As to what is meant by causa causans we may gainfully refer to Black's Law Dictionary (5th Edn.) which defines that expression as under:
"Causa causans.--The immediate cause; the last link in the chain of causation."
The Advance Law Lexicon edited by Justice Chandrachud, former Chief Justice of India defines causa causans as follows:
"Causa causans.--The immediate cause as opposed to a remote cause; the 'last link in the chain of causation'; the real effective cause of damage."
84. The expression "proximate cause" is defined in the 5th Edn. of Black's Law Dictionary as under:
"Proximate cause.--That which, in a natural and continuous sequence, unbroken by any Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 111 of 345 efficient intervening cause, produces injury and without which the result would not have occurred. Wisniewski v. Great Atlantic & Pacific Tea Co. [226 Pa Super 574 : 323 A2d 744 (1974)] , A2d at p. 748. That which is nearest in the order of responsible causation.
SECTION 304A IPC AND MEDICAL NEGLIGENCE VIS- A-VIS CRIMINAL LIABILITY
53.Medical Negligence and Duty of Care has been well explained in the case of Maharaja Agrasen Hospital v. Rishabh Sharma10, passed by Hon'ble Supreme Court of India and the essential paragraph is being reproduced here:-
12.4. Medical Negligence and Duty of Care 12.4.1. Medical negligence comprises of the following constituents:
(1) A legal duty to exercise due care on the part of the medical professional;
(2) failure to inform the patient of the risks involved;
(3) the patient suffers damage as a consequence of the undisclosed risk by the medical professional;
(4) if the risk had been disclosed, the patient would have avoided the injury;
10(2020) 6 SCC 501 : (2020) 3 SCC (Civ) 624 : 2019 SCC OnLine SC 1658 at page 535 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 112 of 345 (5) breach of the said duty would give rise to an actionable claim of negligence.
12.4.4. The degree of skill and care required by a medical practitioner stated in Halsbury's Laws of England [ 3rd Edn., Vol. 26, pp. 17-18; 4th Edn., Vol. 30, para 35.] is as follows:
"22. Negligence : Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient."
"35. Degree of skill and care required.--... To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care."
(emphasis supplied) Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 113 of 345
54. Law on Medical Negligence and Guidelines have been well illustrated by Hon'ble Supreme Court of India in the landmark case of Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 and this Court has no hesitation in reproducing the same for ready reference:-
Negligence as a tort
10. The jurisprudential concept of negligence defies any precise definition. Eminent jurists and leading judgments have assigned various meanings to negligence. The concept as has been acceptable to Indian jurisprudential thought is well stated in the Law of Torts, Ratanlal & Dhirajlal (24th Edn., 2002, edited by Justice G.P. Singh). It is stated (at pp. 441-42):
55. "Negligence is the breach of a duty caused by the 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.
Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property. ... the definition involves three constituents of negligence: (1) A legal duty to exercise due care on the part of the party Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 114 of 345 complained of towards the party complaining the former's conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort."
11. According to Charlesworth & Percy on Negligence (10th Edn., 2001), in current forensic speech, negligence has three meanings. They are: (i) a state of mind, in which it is opposed to intention; (ii) careless conduct; and (iii) the breach of a duty to take care that is imposed by either common or statute law. All three meanings are applicable in different circumstances but any one of them does not necessarily exclude the other meanings. (para 1.01) The essential components of negligence, as recognised, are three: "duty", "breach" and "resulting damage", that is to say:
(1) the existence of a duty to take care, which is owed by the defendant to the complainant; (2) the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and (3) damage, which is both causally connected with such breach and recognised by the law, has been suffered by the complainant. (para 1.23) Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 115 of 345 If the claimant satisfies the Court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence.
(para 1.24) Negligence -- as a tort and as a crime
12. The term "negligence" is used for the purpose of fastening the defendant with liability under the civil law and, at times, under the criminal law. It is contended on behalf of the respondents that in both the jurisdictions, negligence is negligence, and jurisprudentially no distinction can be drawn between negligence under civil law and negligence under criminal law. The submission so made cannot be countenanced inasmuch as it is based upon a total departure from the established terrain of thought running ever since the beginning of the emergence of the concept of negligence up to the modern times. Generally speaking, it is the amount of damages incurred which is determinative of the extent of liability in tort; but in criminal law it is not the amount of damages but the amount and degree of negligence that is determinative of liability. To fasten liability in criminal law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in civil law. The essential ingredient of mens rea cannot be excluded from consideration Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 116 of 345 when the charge in a criminal Court consists of criminal negligence. In R. v. Lawrence [(1981) 1 All ER 974 : 1982 AC 510 : (1981) 2 WLR 524 (HL)] Lord Diplock spoke in a Bench of five and the other Law Lords agreed with him. He reiterated his opinion in R. v. Caldwell [(1981) 1 All ER 961 : 1982 AC 341 : (1981) 2 WLR 509 (HL)] and dealt with the concept of recklessness as constituting mens rea in criminal law. His Lordship warned against adopting the simplistic approach of treating all problems of criminal liability as soluble by classifying the test of liability as being "subjective" or "objective", and said: (All ER p. 982e-f) "Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting 'recklessly' if, before doing the act, he either fails to give any thought to the possibility of there being any such Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 117 of 345 risk or, having recognised that there was such risk, he nevertheless goes on to do it."
14. In order to hold the existence of criminal rashness or criminal negligence it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequences. Lord Atkin in his speech in Andrews v. Director of Public Prosecutions [1937 AC 576 : (1937) 2 All ER 552 (HL)] stated: (All ER p. 556 C) "Simple lack of care such as will constitute civil liability is not enough. For purposes of the criminal law there are degrees of negligence, and a very high degree of negligence is required to be proved before the felony is established." Thus, a clear distinction exists between "simple lack of care" incurring civil liability and "very high degree of negligence" which is required in criminal cases. In Riddell v. Reid [(1942) 2 All ER 161 : 1943 AC 1 (HL)] (AC at p. 31) Lord Porter said in his speech --
"A higher degree of negligence has always been demanded in order to establish a criminal Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 118 of 345 offence than is sufficient to create civil liability."
(Charlesworth & Percy, ibid., para 1.13) Negligence by professionals
18. ........ 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 practises. In Michael Hyde and Associates v. J.D. Williams & Co. Ltd. [2001 PNLR 233 (CA)] Sedley, L.J. said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable. (Charlesworth & Percy, ibid., para 8.03.)
19. An oft quoted passage defining negligence by professionals, generally and not necessarily confined to doctors, is to be found in the opinion of McNair, J. in Bolam v. Friern Hospital Management Committee [(1957) 1 WLR 582 :
(1957) 2 All ER 118 (QBD)] , WLR at p. 586 in the following words: (All ER p. 121 D-F) "[W]here you get a situation which involves the use of some special skill or competence, then Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 119 of 345 the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill ... It is well-
established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art." (Charlesworth & Percy, ibid., para 8.02)
20. The water of Bolam [(1957) 1 WLR 582 :
(1957) 2 All ER 118 (QBD)] test has ever since flown and passed under several bridges, having been cited and dealt with in several judicial pronouncements, one after the other and has continued to be well received by every shore it has touched as neat, clean and a well-condensed one. After a review of various authorities Bingham, L.J. in his speech in Eckersley v. Binnie [(1988) 18 Con LR 1] summarised the Bolam [(1957) 1 WLR 582 : (1957) 2 All ER 118 (QBD)] test in the following words: (Con LR p.
79) "From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 120 of 345 profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in the knowledge of new advances, discoveries and developments in his field. He should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet." (Charlesworth & Percy, ibid., para 8.04)
21. The degree of skill and care required by a medical practitioner is so stated in Halsbury's Laws of England (4th Edn., Vol. 30, para 35):
"35. The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 121 of 345 particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.
Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care."
The abovesaid three tests have also been stated as determinative of negligence in professional practice by Charlesworth & Percy in their celebrated work on Negligence (ibid., para 8.110).
22. In the opinion of Lord Denning, as expressed in Hucks v. Cole [(1968) 118 New LJ 469] a medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 122 of 345 course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
25. A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgment on the part of a professional is not negligence per se. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person in-charge of the patient if the patient is not in a position to give consent before adopting a given procedure.
Case No. 528685/2016FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 123 of 345 So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure.
26. No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Else it would be counter-productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur.
Medical professionals in criminal law
34. The criminal law has invariably placed medical professionals on a pedestal different from ordinary mortals. The Penal Code, 1860 enacted as far back as in the year 1860 sets out a few Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 124 of 345 vocal examples. Section 88 in the Chapter on General Exceptions provides exemption for acts not intended to cause death, done by consent in good faith for person's benefit. Section 92 provides for exemption for acts done in good faith for the benefit of a person without his consent though the acts cause harm to the person and that person has not consented to suffer such harm. There are four exceptions listed in the section which are not necessary in this context to deal with. Section 93 saves from criminality certain communications made in good faith. To these provisions are appended the following illustrations:
Section 88 "A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers under a painful complaint, but not intending to cause Z's death, and intending, in good faith, Z's benefit, performs that operation on Z, with Z's consent. A has committed no offence."
Section 92 "(a) Z is thrown from his horse, and is insensible.
A, a surgeon, finds that Z requires to be trepanned. A, not intending Z's death, but in good faith, for Z's benefit, performs the trepan before Z recovers his power of judging for himself. A has committed no offence.
Case No. 528685/2016FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 125 of 345 ***
(c) A, a surgeon, sees a child suffer an accident which is likely to prove fatal unless an operation be immediately performed. There is no time to apply to the child's guardian. A performs the operation in spite of the entreaties of the child, intending, in good faith, the child's benefit. A has committed no offence."
Section 93 "A, a surgeon, in good faith, communicates to a patient his opinion that he cannot live. The patient dies in consequence of the shock. A has committed no offence, though he knew it to be likely that the communication might cause the patient's death."
A review of Indian decisions on criminal negligence
37. We are inclined to, and we must -- as duty- bound, take note of some of the relevant decisions of the Privy Council and of this Court. We would like to preface this discussion with the law laid down by the Privy Council in John Oni Akerele v. R. [AIR 1943 PC 72 : 44 Cri LJ 569] A duly qualified medical practitioner gave to his patient the injection of sobita which consisted of sodium bismuth tartrate as given in the British Pharmacopoeia. However, what was administered was an overdose of sobita. The patient died. The Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 126 of 345 doctor was accused of manslaughter, reckless and negligent act. He was convicted. The matter reached in appeal before the House of Lords. Their Lordships quashed the conviction. On a review of judicial opinion and an illuminating discussion on the points which are also relevant before us, what Their Lordships have held can be summed up as under:
(i) That a doctor is not criminally responsible for a patient's death unless his negligence or incompetence went beyond a mere matter of compensation between subjects and showed such disregard for life and safety of others as to amount to a crime against the State. (AIR p. 75a)
(ii) That the degree of negligence required is that it should be gross, and that neither a jury nor a Court can transform negligence of a lesser degree into gross negligence merely by giving it that appellation. ... There is a difference in kind between the negligence which gives a right to compensation and the negligence which is a crime. (AIR p. 75b-c)
(iii) It is impossible to define culpable or criminal negligence, and it is not possible to make the distinction between actionable negligence and criminal negligence intelligible, except by means Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 127 of 345 of illustrations drawn from actual judicial opinions. (AIR p. 75c-d) ... The most favourable view of the conduct of an accused medical man has to be taken, for it would be most fatal to the efficiency of the medical profession if no one could administer medicine without a halter round his neck. (AIR p. 75e) (emphasis supplied) Their Lordships refused to accept the view that criminal negligence was proved merely because a number of persons were made gravely ill after receiving an injection of sobita from the appellant coupled with a finding that a high degree of care was not exercised. Their Lordships also refused to agree with the thought that merely because too strong a mixture was dispensed once and a number of persons were made gravely ill, a criminal degree of negligence was proved.
38. The question of degree has always been considered as relevant to a distinction between negligence in civil law and negligence in criminal law. In Kurban Hussein Mohammedali Rangwalla v. State of Maharashtra [(1965) 2 SCR 622 : (1965) 2 Cri LJ 550] while dealing with Section 304-A IPC, the following statement of law by Sir Lawrence Jenkins in Emperor v.
Omkar Rampratap [(1902) 4 Bom LR 679] was cited with approval: (SCR p. 626 D-E) Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 128 of 345 "To impose criminal liability under Section 304- A, Penal Code, 1860, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another's negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non."
Conclusions summed up
48. We sum up our conclusions as under:
(1) 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".
Case No. 528685/2016FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 129 of 345 (2) 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, Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 130 of 345 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 the 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 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 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 case [(1957) 1 WLR 582 : (1957) 2 All ER 118 (QBD)] , WLR at p.
586 [ [Ed.: Also at All ER p. 121 D-F and set Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 131 of 345 out in para 19, p. 19 herein.]] 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 law but cannot form the basis for prosecution.
(6) The word "gross" has not been used in Section 304-A 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 304-A 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 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 132 of 345 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 cases of torts and helps in determining the onus 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. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.
Guidelines -- Re: prosecuting medical professionals
52. Statutory rules or executive instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 133 of 345 accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying the Bolam [(1957) 1 WLR 582 : (1957) 2 All ER 118 (QBD)] test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.
56.In Malay Kumar Ganguly v. Dr. Sukumar Mukherjee, (2009) 9 SCC 221 : (2009) 3 SCC (Civ) 663 : (2010) 2 SCC (Cri) 299 : 2009 SCC OnLine SC 1472 at page 283, it has been observed:-
175. Criminal medical negligence is governed by Section 304-A of the Penal Code.Case No. 528685/2016
FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 134 of 345 ...
176. The essential ingredients of Section 304-A are as under:
(i) Death of a person.
(ii) Death was caused by the accused during any rash or negligent act.
(iii) Act does not amount to culpable homicide.
And to prove negligence under criminal law, the prosecution must prove:
(i) The existence of a duty.
(ii)A breach of the duty causing death.
(iii) The breach of the duty must be characterised as gross negligence.
(See R. v. Prentice [1994 QB 302 : (1993) 3 WLR 927 : (1993) 4 All ER 935] .) Individual liability of Doctors11. For establishing medical negligence or deficiency in service, the Courts would determine the following:
(i) No guarantee is given by any doctor or surgeon that the patient would be cured.
(ii) The doctor, however, must undertake a fair, reasonable and competent degree of skill, which may not be the highest skill.
(iii) Adoption of one of the modes of treatment, if there are many, and treating the patient with due care and caution would not constitute any negligence.
11 Ratanlal and Dhirajlal, The Indian Penal Code 33rd Edition, LexisNexis, page no. 1980.
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(iv) Failure to act in accordance with the standard, reasonable, competent medical means at the time would not constitute a negligence. However, a medical practitioner must exercise the reasonable degree of care and skill and knowledge which he possesses. Failure to use due skill in diagnosis with the result that wrong treatment is given would be negligence.
(v) In a complicated case, the Court would be slow in contributing negligence on the part of the doctor, if he is performing his duties to be best of his ability (Ref:
Malay Kumar Ganguly v. Sukumar Mukherjee, (2009) 9 SCC 221: AIR 2010 SC 1162,)
57. Doctrine of cumulative effect: non-availability in criminal law12. A patient would feel the deficiency in service having regard to the cumulative effect of negligence of all concerned. Negligence on the part of each of the treating doctors as also the hospital may have been contributing factors to the ultimate death of the patient. It is to be noted that doctrine of cumulative effect is not available in criminal law. The complexities involved in the instant case as also differing nature of negligence exercised by various actors, makes it very difficult to distil individual extent of negligence with respect to each of the respondent. In such a scenario finding of medical negligence under S.304-A cannot be objectively determined. (Ref: Malay Kumar Ganguly v. Sukumar Mukherjee, (2009) 9 SCC 221:
AIR 2010 SC 1162)
12 Ibid.
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58. Hon'ble Supreme Court of India again had an opportunity to sum up law in Kusum Sharma and others v. Batra Hospital and Medical Research Centre and others, (2010) 3 SCC 480:
AIR 2010 SC wherein it was observed:-
(I) Negligence is the breach of a duty exercised 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.
(II) Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
(III) The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. (IV) A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
(V) In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
(VI) The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 137 of 345 honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence. (VII) Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence.
Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
(VIII) It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
(IX) It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension. (X) The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. (XI) The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 138 of 345 welfare of the patients have to be paramount for the medical professionals.
59. Two of the English Judgments which are essential to comprehensively understand the law on medical negligence and which have been extensively relied by our Hon'ble Supreme Court of India is Bolam v Friern Hospital Management Committee Queen's Bench Division [1957] 1 WLR 582; [1957] 2 All ER 118 and R. v Adomako [1995] 1 AC 171 (HL) and details as well finding are being produced for comprehensive understanding and perusal:-
Bolam v Friern Hospital Management Committee Queen's Bench Division [1957] 1 WLR 582; [1957] 2 All ER 11813
60.The fact stood as that the claimant suffered a fracture of the pelvis while he was undergoing electroconvulsive therapy. The issue was whether the doctor was negligent in failing to give a relaxant drug before the treatment, or in failing to provide means of restraint during it. Evidence was given of the practices of various doctors in this regard, and the extracts below deal with the appropriate test to be applied in assessing the conduct of the defendant. Held:
the defendants were not liable.
MCNAIR J, [addressing the jury]:
Before I turn to that, I must tell you what in law we mean by 'negligence.' In the ordinary case which does not involve any special skill, negligence in law means a failure 13 Casebook on Torts by Richard Kidner, 12th Edition, Oxford University Press, p. 44-45 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 139 of 345 to do some act which a reasonable man in the circumstances would do, or the doing of some act which a reasonable man in the circumstances would not do; and if that failure or the doing of that act results in injury, then there is a cause of action. How do you test whether this act or failure is negligent? In an ordinary case it is generally said you judge it by the action of the man in the street. He is the ordinary man. In one case it has been said you judge it by the conduct of the man on the top of a Clapham omnibus. He is the ordinary man. But where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. I do not think that I quarrel much with any of the submissions in law which have been put before you by counsel. Mr Fox-Andrews put it in this way, that in the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. That is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards; and if he conforms with one of those Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 140 of 345 proper standards, then he is not negligent. Mr Fox-
Andrews also was quite right, in my judgment, in saying that a mere personal belief that a particular technique is best is no defence unless that belief is based on reasonable grounds. That again is unexceptionable. But the emphasis which is laid by the defence is on this aspect of negligence, that the real question you have to make up your minds about on each of the three major topics is whether the defendants, in acting in the way they did, were acting in accordance with a practice of competent respected professional opinion. Mr Stirling submitted that if you are satisfied that they were acting in accordance with a practice of a competent body of professional opinion, then it would be wrong for you to hold that negligence was established. In a recent Scottish case, Hunter v Hanley, 1955 SLT 213, Lord President Clyde [at p. 217] said:
"In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care.Case No. 528685/2016
FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 141 of 345 If that statement of the true test is qualified by the words 'in all the circumstances,' Mr Fox-Andrews would not seek to say that that expression of opinion does not accord with the English law. It is just a question of expression. I myself would prefer to put it this way, that he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. I do not think there is much difference in sense. It is just a different way of expressing the same thought. Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view. At the same time, that does not mean that a medical man can obstinately and pigheadedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion. Otherwise you might get men today saying:'I do not believe in anaesthetics. I do not believe in antiseptics. I am going to continue to do my surgery in the way it was done in the eighteenth century.' That clearly would be wrong. Before I get to the details of the case, it is right to say this, that it is not essential for you to decide which of two practices is the better practice, as long as you accept that what the defendants did was in accordance with a practice accepted by responsible persons; if the result of the evidence is that you are satisfied that this practice is better than the practice spoken of on the other side, then Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 142 of 345 it is really a stronger case. Finally, bear this in mind, that you are now considering whether it was negligent for certain action to be taken in August, 1954, not in February, 1957; and in one of the well-known cases on this topic it has been said you must not look with 1957 spectacles at what happened in 1954.
R. v Adomako [1995] 1 AC 171 (HL)14 Adomako was an anaesthetist who failed to notice for six minutes that a tube that supplied oxygen to his patient had become disconnected from the ventilator. As a result, the patient died. He was convicted of gross negligence manslaughter, but appealed on the basis that the judge had misdirected the jury.
Lord Mackay of Clashfern LC The jury convicted the appellant of manslaughter by a majority of 11 to 1. The Court of Appeal, Criminal Division dismissed the appellant's appeal against conviction but certified that a point of law of general public importance was involved in the decision to dismiss the appeal, namely:
'In cases of manslaughter by criminal negligence not involving driving but involving a breach of duty is it a sufficient direction to the jury to adopt the gross negligence test set out by the Court of Appeal in the present case following R v Bateman (1925) 19 Cr App R 8 and Andrews v DPP [1937] AC 576 without reference to 14 See Jonathan Herring, Criminal Law: Text, Cases and Materials, Oxford University Press, P 274-275 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 143 of 345 the test of recklessness as defined in R v Lawrence [1982] AC 510 or as adapted to the circumstances?' [Having quoted from R v Bateman (1925) 19 Cr App R 8 and Andrews v DPP [1937] AC 576 Lord Mackay continued:] In my opinion the law as stated in these two authorities is satisfactory as providing a proper basis for describing the crime of involuntary manslaughter.... On this basis in my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died.
If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant's conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal.
It is true that to a certain extent this involves an element of circularity, but in this branch of the law I do not believe that is fatal to its being correct as a test of how far conduct must depart from accepted standards to be characterised as criminal. This is necessarily a question of degree and an Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 144 of 345 attempt to specify that degree more closely is I think likely to achieve only a spurious precision. The essence of the matter, which is supremely a jury question, is whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission. ... I am of the opinion that this appeal should be dismissed and that the certified question should be answered by saying:
'In cases of manslaughter by criminal negligence involving a breach of duty, it is a sufficient direction to the jury to adopt the gross negligence test set out by the Court of Appeal in the present case following R v Bateman (1925) 19 Cr App R 8 and Andrews v DPP [1937] AC 576 and it is not necessary to refer to the definition of recklessness in R v Lawrence [1982] AC 510, although it is perfectly open to the trial judge to use the word "reckless" in its ordinary meaning as part of his exposition of the law if he deems it appropriate in the circumstances of the particular case.' ...
Personally I would not wish to state the law more elaborately than I have done. In particular I think it is difficult to take expressions used in particular cases out of the context of the cases in which they were used and enunciate them as if applying generally. This can I think lead to ambiguity and perhaps unnecessary complexity. The task of trial judges in setting out for the jury the issues Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 145 of 345 of fact and the relevant law in cases of this class is a difficult and demanding one. I believe that the supreme test that should be satisfied in such directions is that they are comprehensible to an ordinary member of the public who is called to sit on a jury and who has no particular prior acquaintance with the law. To make it obligatory on trial judges to give directions in law which are so elaborate that the ordinary member of the jury will have great difficulty in following them, and even greater difficulty in retaining them in his memory for the purpose of application in the jury room, is no service to the cause of justice. The experienced counsel who assisted your Lordships in this appeal indicated that as a practical matter there was a danger in over-elaboration of definition of the word 'reckless'. While therefore I have said in my view it is perfectly open to a trial judge to use the word 'reckless' if it appears appropriate in the circumstances of a particular case as indicating the extent to which a defendant's conduct must deviate from that of a proper standard of care, I do not think it right to require that this should be done and certainly not right that it should incorporate the full detail required in R v Lawrence [1982] AC 510.
Appeal dismissed.
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61.In Vinitha Ashok v. Lakshmi Hospital 15, Hon'ble Supreme Court of India has advised with word of caution as :-
62. 33. After considering the effect of all these decisions, this Court in Achutrao Haribhau Khodwa case [(1996) 2 SCC 634] held as follows:
(SCC pp. 645-46, para 14)
63. "14. The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the Court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence."
15(2001) 8 SCC 731 : 2001 SCC OnLine SC 1146 at page 746 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 147 of 345 LEGAL OBJECTIONS ON BEHALF OF ACCUSED NO. 2 &3
64. The first objection that has been taken on behalf of accused no. 2 and 3 is with respect to jurisdiction wherein since the Hon'ble High Court of Delhi by order dated 14.10.2018 in WP(Crl.) no. 2390/2017 has fixed the upper timeframe limit of one year to conclude the trial and the trial should have been completed by 01.12.2019 and since the Court has not been able to complete the trial as already has been fixed and have argued that there was no extension for the conclusion of the trial therefore this Court has no jurisdiction to decide the case beyond the time-limit frame and provided by Hon'ble High Court of Delhi. It has been argued that since the District Court has no power to enlarge the time-limit, therefore the trial of this cases is without jurisdiction. Ld. Counsel for the accused no. 2 and 3 have relied upon the judgement of Kiran Singh v. Chaman Paswan, (1955) 1 SCR 117 : AIR 1954 SC 340And in particular :-
6. ............ It is a fundamental principle well established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 148 of 345 strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties. ......... The question is what is the effect of Section 11 of the Suits Valuation Act on this position.
65. Further the Ld. Counsel for accused no. 2 & 3 have relied upon Hasham Abbas Sayyad v. Usman Abbas Sayyad, (2007) 2 SCC 355 : 2006 SCC OnLine SC 1386 at page 363 and in particular :-
22. ....... Any order passed by a Court without jurisdiction would be coram non judice, being a nullity, the same ordinarily should not be given effect to. [See Chief Justice of A.P. v.
L.V.A. Dixitulu [(1979) 2 SCC 34 : 1979 SCC (L&S) 99 : AIR 1979 SC 193] and MD, Army Welfare Housing Organisation v. Sumangal Services (P) Ltd. [(2004) 9 SCC 619] ].
66. Relying upon the definition of jurisdiction as provided in Foreshore Coop. Housing Society Ltd. v. Praveen D. Desai, (2015) 6 SCC 412 : (2015) 3 SCC (Civ) 333 : 2015 SCC OnLine SC 302 at page 430
45. The term "jurisdiction" is a term of art; it is an expression used in a variety of senses and draws colour from its context. Therefore, to confine the term "jurisdiction" to its conventional and narrow meaning would be contrary to the well-settled interpretation of the term. The Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 149 of 345 expression "jurisdiction", as stated in Halsbury's Laws of England, 4th Edn., Vol. 10, Para 715, is as follows:
"715. Meaning of 'jurisdiction'.--By 'jurisdiction' is meant the authority which a Court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the Court is constituted, and may be extended or restricted by similar means.
If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the claims and matters of which the particular Court has cognisance, or as to the area over which the jurisdiction extends, or it may partake of both these characteristics."
46. In American Jurisprudence, Vol. 32-A, Para 581, it is said that:
"Jurisdiction is the authority to decide a given case one way or the other. Without jurisdiction, a Court cannot proceed at all in any case; jurisdiction is the power to declare law, and when it ceases to exist, the only function remaining to a Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 150 of 345 Court is that of announcing the fact and dismissing the cause."
Further, in Para 588, it is said that lack of jurisdiction cannot be waived, consented to, or overcome by agreement of the parties.
47. It is well settled that essentially jurisdiction is an authority to decide a given case one way or the other. Further, even though no party has raised objection with regard to jurisdiction of the Court, the Court has power to determine its own jurisdiction. In other words, in a case where the Court has no jurisdiction it cannot confer upon it by consent or waiver of the parties.
67. Though Hon'ble High Court of Delhi had directed to expedite the trial in FIR no. 615/2004 and conclude the same within one year from the next date fixed before it however it doesn't pertains to the matter of jurisdiction. As far as the Jurisdiction is concerned, the its sphere pertains to territorial pecuniary and subject matter jurisdiction, which have been provided for in the case of Kiran Singh (supra), which have already been relied upon on behalf of the accused no. 2 & 3. It is not the case wherein this Court does not have jurisdiction to try the subject matter or does not have territorial jurisdiction. This case has been transferred to this Court after recusal taken by my colleague on 29.10.2022 and it was duly transferred by the Ld. CMM to this Court on 31.10.2022. Therefore the same has been duly exercised by the power conferred under Section 410 of Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 151 of 345 Cr.P.C. Further the direction given by Hon'ble High Court of Delhi to expedite the trial and concluded within the year may draw for the contempt or any other remedy but does not go to the root of the jurisdiction to the extent that the continuation of trial after the date directed for will vitiates the trial. Therefore the issue of jurisdiction as has taken up by the Ld. Counsel for the accused no. 2 and 3 is not sustainable and this Court duly holds the jurisdiction. The directions given by Hon'ble High Court of Delhi to expedite the trial and concluded within a year and the continuation of trial after the time frame directed does not vitiates the trial.
68. The second objection that have been duly taken on behalf of accused no. 2 and 3 have been that of that the cognizance of the offence have been taken twice. The Ld. Counsel for accused no. 2 and 3 have argued that cognizance of the offence was taken under Section 304/34 IPC against the three accused by the Ld. MM on 31.05.2007 and the case was duly committed to the Court of Session on 07.06.2007 and after the observance of the Ld. Sessions Court vide order dated 04.03.2008 wherein accused were to be tried for S. 304A IPC and therefore the Ld. Magistrate took cognizance in the matter second time vide order dated 24.03.2008. The Ld. Counsel for the accused no. 2 and 3 have relied upon judgement of Dharam Pal v. State of Haryana, (2014) 3 SCC 306 : (2014) 2 SCC (Cri) 159 : 2013 SCC OnLine SC 648 at page 319And in particular :-
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39. This takes us to the next question as to whether under Section 209, the Magistrate was required to take cognizance of the offence before committing the case to the Court of Session. It is well settled that cognizance of an offence can only be taken once. In the event, a Magistrate takes cognizance of the offence and then commits the case to the Court of Session, the question of taking fresh cognizance of the offence and, thereafter, proceed to issue summons, is not in accordance with law. If cognizance is to be taken of the offence, it could be taken either by the Magistrate or by the Court of Session. The language of Section 193 of the Code very clearly indicates that once the case is committed to the Court of Session by the learned Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. The provisions of Section 209 will, therefore, have to be understood as the learned Magistrate playing a passive role in committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session. Nor can there be any question of part cognizance being taken by the Magistrate and part cognizance being taken by the learned Sessions Judge.Case No. 528685/2016
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69. The expression "taking cognizance" in Section 190 of Code of Criminal procedure, 1973 means judicial application of mind of the Magistrate to the facts mentioned in the complaint with a view to taking further action.16Perusal of the order sheet dated 24.03.2008 only reiterates the order of Ld. Session Judge dated 04.03.2008 wherein the observation of the order has been reiterated that it has been held that the offence under Section 304A/34 IPC is made out against the accused which is triable by Court of Metropolitan Magistrate. There is no averment with respect to the cognizance or there have been any instance which can be culled out from such order that the cognizance was taken twice. Henceforth, the objection taken with respect that the cognizance was taken twice is not sustainable.
70. The third objection-cum-relief that has been sought by the Ld. Counsel for the accused no. 2 and 3 is that the trial has become oppressive and unwarranted due to long delay of almost 15 years and right to speedy trial and fundamental rights of the accused under Article 21 are infringed. Further this case being the fit case wherein proceedings must be stopped under Section 258 Cr.P.C. Ld. Counsel for accused no. 2 and 3 have relied upon the judgment of P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578 : 2002 SCC (Cri) 830 : 2002 SCC OnLine SC 464 at page 602 and in particular:-
28. .......The test is whether the proceedings or trial has remained pending for such a length of time that the inordinate delay can legitimately be 16 Tula Ram v Kishore Singh AIR 1977 SC 2401 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 154 of 345 called oppressive and unwarranted, as suggested in A.R. Antulay [(1992) 1 SCC 225 : 1992 SCC (Cri) 93] . In Kartar Singh case [(1994) 3 SCC 569 : 1994 SCC (Cri) 899] the Constitution Bench while recognising the principle that the denial of an accused's right of speedy trial may result in a decision to dismiss the indictment or in reversing of a conviction, went on to state:
"92. Of course, no length of time is per se too long to pass scrutiny under this principle nor the accused is called upon to show the actual prejudice by delay of disposal of cases. On the other hand, the Court has to adopt a balancing approach by taking note of the possible prejudices and disadvantages to be suffered by the accused by avoidable delay and to determine whether the accused in a criminal proceeding has been deprived of his right of having speedy trial with unreasonable delay which could be identified by the factors -- (1) length of delay, (2) the justification for the delay, (3) the accused's assertion of his right to speedy trial, and (4) prejudice caused to the accused by such delay."
(SCC pp. 639-40, para 92)
71. Further the Ld. Counsel of the accused no. 2 and 3 have relied on the termination of proceedings under Section 258 Cr.P.C. on M. Subramanyam v. State of Karnataka, 1987 SCC Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 155 of 345 OnLine Kar 327 : ILR 1988 Kar 210 : (1990) 1 Kant LJ (SN
69) 67 at page 213 And in particular:-
6. Admittedly the offences under Sections 279 and 337 are summons case. The most important witnesses are the victim Sudhakar-PW. 2 and the I.O. Anwar Pasha P.W. 1. The rest of the CWs.
are absolutely formal and even if they are examined they would not connect the accused with the crime. Therefore taking into consideration that the offence has taken place in December 1983 and that we are at the fag end of 1987 and that a very little or tardy progress is made by the prosecution in this case, and taking into consideration that the remaining witnesses in the case are formal, I think this would be a fit case in which the Magistrate ought to have exercised the power vested in him under Section 258 Cr. P.C. Refusal to exercise the discretion in such circumstances would be a negation of the principle laid down by Section 258 Cr. P.C. The Magistrate as well as the Sessions Judge, in my opinion, slipped into an error in refusing to exercise the jurisdiction under Section 258 Cr. P.C. The view of the Sessions Judge that as it was a revision and when the prosecution intended to examine the remaining witnesses, it was not necessary and proper for him to pass an order contemplated by Section 258 Cr. P.C., is Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 156 of 345 opposed to the principle laid down by Section 258 Cr.P.C. So this is a fit case where the discretion vested in the Magistrate by Section 258 Cr. P.C. ought to have been exercised. Failure to exercise the same would amount to negation of justice.
72. Ld. Counsel for the accused no. 2 and 3 have further emphasised upon right of speedy trial and had relied upon the judgement of Gurreet Singh Kohli vs State Of Punjab And Another on 23 February, 2022 passed by Hon'ble High Court Of Punjab And Haryana At Chandigarh.
16. Right to speedy trial has been held as inherent under Article 21 of the Constitution of India. The Hon'ble Supreme Court in the matter of Hussainara Khatoon & Ors Vs. Home Secretary, State of Bihar, 1980 (1) SCC 81 held that speedy trial is of essence to administration of criminal justice and that it is implicit in the broad sweep and content of Article 21 of the Constitution of India.
....
17. The aforesaid aspect was reiterated by the Hon'ble Supreme Court in the matter of Abdul Rehman Antulay & Ors Vs. R.S. Nayak & Anr., 1992(1) SCC 225. While interpreting the scope of Article 21 of the Constitution of India, the Hon'ble Supreme Court held that every citizen has a right to speedy trial of the case against him. Further, the Constitutional Bench in the matter of P. Ramachandra Rao Vs. State of Karnataka 2002 (4) SCC 578 observed as under:-
Case No. 528685/2016FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 157 of 345 '1. ........ The mental agony, expense and strain which a person proceeded against in criminal law has to undergo and which, coupled with delay, may result in impairing the capability or ability of the accused to defend himself have persuaded the constitutional Courts of the country in holding the right to speedy trial a manifestation of fair, just and reasonable procedure enshrined in Article
21. .............
10. During the course of its judgment also the Constitution Bench made certain observations which need to be extracted and reproduced:-
"But then speedy trial or other expressions conveying the said concept are necessarily relative in nature. One may ask speedy means, how speedy? How long a delay is too long?
We do not think it is possible to lay down any time schedules for conclusion of criminal proceedings. The nature of offence, the number of accused, the number of witnesses, the workload in the particular Court, means of communication and several other circumstances have to be kept in mind". (para 83).
".it is neither advisable nor feasible to draw or prescribe an outer time-limit for conclusion of all criminal proceedings. It is not necessary to do so for effectuating the right to speedy trial. We are also not satisfied that without such an outer limit, the right becomes illusory".
(SCC pp.268-69, para 83) "even apart from Article 21 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 158 of 345 Courts in this country have been cognizant of undue delays in criminal matters and wherever there was inordinate delay or where the proceedings were pending for too long and any further proceedings were deemed to be oppressive and unwarranted, they were put an end to by making appropriate orders". (SCC p.260, para 65)
29. For all the foregoing reasons, we are of the opinion that in Common Cause case (I) (as modified in Common Cause (II) ) and Raj Deo Sharma (I) and (II), the Court could not have prescribed periods of limitation beyond which the trial of a criminal case or a criminal proceeding cannot continue and must mandatorily be closed followed by an order acquitting or discharging the accused. In conclusion we hold:-
(1) xxxxxxx (2) xxxxxxx (3) xxxxxxx (4) xxxxxx (5) The Criminal Courts should exercise their available powers, such as those under Sections 309, 311 and 258 of Code of Criminal Procedure to effectuate the right to speedy trial. ........
18. The above principles stood reiterated by the Hon'ble Supreme Court in the matter of Vakil Prasad Singh Vs. State of Bihar 2009 (3) SCC 355, wherein it has observed as under:-
19. The exposition of Article 21 in Hussainara Khatoon's case (supra) was exhaustively considered afresh by the Constitution Bench in Abdul Rehman Antulay & Ors. Vs. R.S. Nayak & Anr. (1992) 1 SCC 225. ........... For the sake Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 159 of 345 of brevity, we do not propose to reproduce all the said propositions and it would suffice to note the gist thereof. These are: (i) fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily; (ii) right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial; (iii) in every case where the speedy trial is alleged to have been infringed, the first question to be put and answered is -- who is responsible for the delay?; (iv) while determining whether undue delay has occurred (resulting in violation of right to speedy trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the work-load of the Court concerned, prevailing local conditions and so on--what is called, (1992) 1 SCC 225 the systemic delays; (v) each and every delay does not necessarily prejudice the accused.
Some delays may indeed work to his advantage. However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become persecution, again depends upon the facts of a given case; (vi) ultimately, the Court has to balance and weigh several relevant factors--'balancing test' or 'balancing process'--and determine in each case whether the right to speedy trial has Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 160 of 345 been denied; (vii) Ordinarily speaking, where the Court comes to a conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open and having regard to the nature of offence and other circumstances when the Court feels that quashing of proceedings cannot be in the interest of justice, it is open to the Court to make appropriate orders, including fixing the period for completion of trial; (viii) it is neither advisable nor feasible to prescribe any outer time-limit for conclusion of all criminal proceedings. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the Court to weigh all the circumstances of a given case before pronouncing upon the complaint; (ix) an objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in the High Court must, however, be disposed of on a priority basis....
73. However it is important to mention herein that fair trial is an absolute right of an accused but speedy trial is a relative right as held in Mohd. Hussain @ Julfikar Ali v. State AIR 2012 SC 3860. Further the reliance upon the judgement of M. Subramanyam v. State of Karnataka, 1987 SCC OnLine Kar Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 161 of 345 327 can be distinguished upon the fact as the victim in that case have turned hostile and only formal witnesses were left, and therefore there was no occasion for the conviction of the accused henceforth the stoppage of proceedings were preferred and was reasonable to do so.
74. In the judgement already relied by the Ld. Counsel for the accused no. 2 and 3, P. Ramachandra Rao Vs. State of Karnataka 2002 (4) SCC 578, it has been categorically held in such judgement the Court could not have prescribed periods of limitation beyond which the trial of a criminal case or a criminal proceeding cannot continue and must mandatorily be closed followed by an order acquitting or discharging the accused. This judgement has been passed by Seven Judge Bench of Hon'ble Supreme Court of India henceforth no grounds is made out for the stoppage of proceeding or any time-limit could be set-up for the completion of trial. As already held, though the directions has been given by Hon'ble High Court of Delhi to expedite the trial and concluded within the year, the legal consequence that would flow is not stoppage of proceeding rather to move to Hon'ble High Court of Delhi for the remedy available therein.
75. The last and fourth objection that has been taken on the behalf of accused no. 3 that he has not been named in the first information report and therefore his involvement in the present case is not justified and the standard that has been put forth for person to be tried and to be an accused is same as that of Section Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 162 of 345 319 Cr.P.C. Ld. Counsel has relied upon the Judgment of Ajay Kumar v. State of Uttarakhand, (2021) 4 SCC 301 : 2021 SCC OnLine SC 48 at page 304 and in particular:-
4. The principles for exercise of power under Section 319 CrPC by the criminal Court are well settled. The Constitution Bench of this Court in Hardeep Singh v. State of Punjab [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 :
(2014) 2 SCC (Cri) 86] , has elaborately considered all contours of Section 319 CrPC. This Court has held that power under Section 319 CrPC is a discretionary and extraordinary power which has to be exercised sparingly. This Court further held that the test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In paras 105 and 106, the following has been laid down : (SCC p. 138) "105. ...
Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised and not in a casual and cavalier manner.
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76. However such reliance is misplaced . At the stage of trial, Section 319 Cr.P.C. is invoked wherein incriminating material or evidence is found against the any person who can and would be prospective accused. The standard has been kept high because at the stage of trial, there is no independent agency to verify the same and Court has to appreciated evidence at it own end to invoke Section 319 Cr.P.C. Therefore only where cogent and strong evidences are found, then only any third person should be tried in as an accused as per section 319 Cr.P.C. But at the stage of investigation, such arguments are not sustainable as there is an independent investigative agency which collects the evidence and can verify at its own end. It is not sustainable that mere non- mentioning of the name of accused no. 3 in the FIR, therefore he cannot be tried as an accused. Time and again Hon'ble Supreme Court of India has held that FIR are need not to be in encyclopedia and has been held in Umar Mohammad v. State of Rajasthan, (2007) 14 SCC 711 that mere omission in an FIR cannot be a ground for exoneration when investigative agency finds at its own end the involvement and incriminating evidence. Therefore the last leg of legal argument on part of accused no. 3 is also not sustainable.
PRE-OPERATIVE STAGE
77. Preoperative care and management pertains to the correct diagnosis of the disease and all the procedural requirements had been undertaken before the surgery could be performed. It is an incontrovertible fact that the deceased in the present case was Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 164 of 345 suffering from problem of the nose as her mother PW19 stated on 21.11.2019 that his son has breathing problem during winter season. Same also stands corroborated by the statement of the father PW16 who stated before the Court on 11.10.2019 that he took his child to accused no. 1 on 11.09.2004 for the treatment of the nose of the child.
78. It was not that the parents of the deceased i.e PW 16 and PW19 had for the first time had approached accused no. 1 but prior to this, their child was initially examined at renowned Apollo Hospital Delhi where he was diagnosed with adenoids and two of the doctors who had examined the deceased were Dr. Kalpana Nagpal (E.N.T. Surgeon) and Dr. P.N. Dubey (Paediatrician) who had advised adenoidectomy surgery under general anaesthesia on 07.09.2004.
79. This also stands confirmed with the testimony of Dr Kalpana Nagpal herself who was summoned as a prosecution witness i.e. PW20 wherein she deposed on 25.11.2019 that on 07.09.2004 she was working at Indraprastha Apollo, Sarita Vihar, New Delhi as a Senior Consultant, ENT & Head & Neck Surgery and medically examined the deceased and prepared the ENT report under her own handwriting which was tendered as Ex. PW20/A bearing her signatures at point A and as per her report Ex. PW20/A, the patient was diagnosed with enlarged adenoids (adenoidal hyperplasia) and was advised surgery (adenoidectomy) under general anaesthesia.
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80. When the parents of the deceased thereafter approached accused no. 1 at his clinic on 11.09.2004, the medical documents of Apollo Hospital were shown to accused no. 1, and accused no. 1 advised the parents for the X-ray of the Nasopharynx region for assessing the size of the adenoids vis-a-vis size of the airways. The same also stands corroborated in the testimony of the father of the deceased wherein in his examination-in-chief conducted on 11.10.2019, he admitted that Dr Handa referred for the X-ray of the nose of his child. It is pertinent to mention herein that in documents which were prepared at the Apollo Hospitals i.e. Ex.PW20/A do not reveals any history of bleeding from the nose. This is one of the symptoms which rules out the possibility that the disease is not adenoids.
81. Further one of the doubt that were raised on the part of the prosecution for the negligence have been stated to be that no CT Scan and Angiography has been taken or were carried out to rule out the possibility of Angiofibroma. One of the major symptom in the cases of angiofibroma is bleeding from the nose. The same also stands corroborated in view of testimony of father of the deceased where in his deposition he had stated that 'My child did not have nose bleeding at any point of time' and much from the testimony of his mother (PW-19) who in her cross examination dated 21.11.2019 have deposed that her son has breathing problem during winter season. The mother has categorically stated in detail about the breathing problem and that too in what season but she has omitted to state here as well as anywhere in her testimony that her son was suffering from the problem of Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 166 of 345 nose bleeding which is a material omission on her part and also treatment papers of Apollo Hospital Ex.PW20/A and Mark E do not reveal that the deceased was suffering anywhere with the bleeding from the nose or there was any whisper in the form of complaint by the parents of the deceased. Had it been otherwise, it would have been mentioned upon such treatment papers Ex.PW20/A.
82. Further the testimony of the father of the deceased reveals that he admitted during his cross-examination that accused no. 1 told him the disease of his son as adenoids and Apollo Hospital also told him the same disease, that treatment paper of his child were prepared at Apollo, and the same were deposited with the Balaji Hospital which in turn was given to the police and as to the test of Angiography and CT Scan, he deposed that he did not remember such test were advised at the Apollo Hospital or not. Perusal of Ex.PW20/A reveal that though other test were advised at Apollo Hospital and against the column of diagnosis, it is clearly mentioned as Gross Adenoidal Hyperplasia but none of the test recommended were that of Angiography or/and CT Scan. Therefore in view of the fact that renowned Apollo Hospital and its senior ENT specialist had diagnosed Gross Adenoidal Hyperplasia, the same was also diagnosed by accused no. 1, further confirmation was taken by conducting X-ray test (Lateral Radiograph) which is essential for differential diagnosis as well as would demonstrate the presence and size of adenoids as per Logan Turner's Diseases of the Nose throat and Ear 17 which is 17 Tenth Edition, edited by AGD Maran, Jaypee Brothers Publisher & Hodder Arnold, Chapter 4.1, Page 363-371 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 167 of 345 further confirmed by Scott-Brown's Otolaryngology18and no history of bleeding from the nose confirms that deceased was suffering from adenoids that was confirmed by two different doctors i.e. Dr. Kalpana Nagpal, Senior Consultant, ENT & Head & Neck Surgery and Accused no. 1 who has qualified M.B.B.S in 1986 and M.S.(Oto-Rhino-Laryn) in 1991 from University of Delhi and he stands registered vide Ex.DW2/C (OSR) with registration no. 9599 of 24.07.2001 and through Ex.DW3/DB was tendered on 01.06.2022, it has already come on record quoting Clause 7.20 of Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 which reads as "A physician shall not claim to be specialist unless he has a special qualification in that branch". Therefore as per the evidences before this Court, since accused no. 1 has completed his M.S. (Oto-Rhino-Laryn) in 1991 from University of Delhi, he stands confirmed as a specialist as per Rules19, therefore the propensity of wrong diagnosis seems to be negligible and stands confirmed by the second Doctor (in the present case accused no. 1 who has conducted the requisite test as per the authentic textbooks). Even the parents of the deceased were aware wherein they have deposed that it was known to them that accused no. 1 is an ENT specialist in their deposition. Therefore the leg of argument and the opinion as furnished by Post Mortem Report Ex.PW1/A dt 01.10.2004 and in particular Ex.PW1/D3 to the extent of undertaking special investigation and opinion furnished by the subsequent medical Board 18 Sixth Edition, Edited By David A. Adams and Michael J. Cinnamond, Volume 6, Chapter 18, Pages 6/18/1 to 6/18/14, published by Butterworth - Heinemann 19 Clause 7.20 of Indian Medical Council( Professional Conduct, Etiquette and Ethics) Regulations, 2002 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 168 of 345 Ex.PW2/1 and in particular clause 2 stands demolished beyond a reasonable doubt.
83. It is also pertinent to mention herein that the biopsy report which have been tendered in evidence. It has been admitted by PW1 that Histopathology(Biopsy) report is not always the ultimate test for the diagnosis of the disease but it can be safely be inferred from the deposition of PW1 that it is the test for the diagnosis of the disease. PW4 admits that 'It is correct that biopsy report is a surest test of confirming a tissue and diagnosis'. PW5 deposed that biopsy is a standard test for the diagnosis of the disease and final nail in the coffin is a testimony of DW5 Dr. Kiran Aggarwal, Director Professor, Lady Harding Medical College who opined that histopathology (Biopsy) is the most important and confirmatory diagnostic tool for surgically resected specimen. The biopsy report was tendered as Ex.PW4/D2 wherein PW4 after going through it himself admitted that deceased Master Komal Khatri was diagnosed with Hypertrophied Adenoids. In view of the testimony of four doctor and biopsy report, the disease adenoids cannot be ruled out and this Court beyond a shadow of doubt holds that there have been no wrong diagnosis and operation was undertaken of the disease which was correctly verified at two junctures (at Apollo Hospital and at the clinic of accused no. 1) which further rules out any margin of error which could have crept in.
84. It has further been objected by Ld. Counsel for the complainant that such biopsy report have been clandestinely Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 169 of 345 tender as Ex. PW4/D2 and henceforth this shows the malafide approach wherein the document have been exhibited, however such argument is unsustainable in view of the fact that such biopsy report was already on the case file and it was filed by the prosecution and at the time when such document was exhibited, no objection has been taken up by the prosecution to de-exhibit it or question its admissibility or relevancy. Nothing has been brought on record as well which could cast doubt upon Ex.PW4/D2. Henceforth such objection at this stage of final arguments remains unsustainable.
85. Further PW1 could not advise whether adenoidectomy is appropriate procedure as advised by Apollo Hospital for adenoids and could not say whether CT Scan and Angiography is conducive on patient of Adenoid Surgery and even could not answer whether the X-ray is needed for adenoid surgery. PW1 is even ignorant of any medical textbook or medical guidelines which could prescribe MRI, Angiography and CT Scan as mandatory standard preoperative procedure. PW3 admitted that CT scan and Angiography is not needed for adenoid surgery. Though PW3 only suspects the disease of Angiofibroma but later on in his deposition concedes that there is no history suggested of Angiofibroma. These all deposition falls in the favour of the accused and in particular of accused no. 1 and 3.
86. Requisite test were also performed and seems stands proved as per the testimony of PW-9 who appeared on behalf of Dr Amarjeet Handa on 01.08.2019 vide authority letter Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 170 of 345 Ex.PW9/A, and proved X-ray report no. 947/4 as Ex.PW9/B prepared by Dr J.R. Duggal qua signature at Point B, pathologic report no. 982/04 dated 28.09.2004 as Ex.PW9/C and Ex.PW9/D and report no. 4079/04 which was already Ex.PW4/DA. The matter does not ceases here as Dr Amarjeet Handa entered into the witness box as a prosecution witness as PW-10 wherein he deposed that on 15.09.2004, Baby Komal Khatri aged 11 years visited his clinic for x-ray soft tissue neck lateral view which was conducted and report was prepared as Ex.PW4/D1. He identified the signature of Dr Duggal on Ex.PW9/B and identified a signature at point A on Ex.PW9/C and Ex.PW9/D. PW-10 was duly cross-examined to which he deposed that patient was referred by accused no. 1 and adenoids was detected vide Ex.PW4/D1. The blood report was normal as well as the x-ray chest. Urine analysis, x-ray chest and haematologist report was referred by Apollo Hospital which was exhibited already as Ex.PW9/B, Ex.PW9/C and Ex.PW9/D respectively. He admitted that TLC level in the blood of the patient was mild high, however on being interpreted medically it is apparent that it was mild high as the deceased was suffering of Adenoids and leucocytes is normal immune response and the body of the deceased was fighting against infection / inflammation. This further sweeps out any propensity of gross negligence beyond a shadow of doubt with respect to confirmation of correct diagnosis and requisite test undertaken before the surgery have been performed. Therefore there is no omission to carry out requisite pre-operation tests.
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87. Further the proof of wrong diagnosis was on the prosecution to prove to the satisfaction of Court that it was anything other than Adenoids. Prosecution has miserably failed to prove that deceased was suffering from any other disease or have been able to prove that deceased at least was not suffering from Adenoids.
88. One of the issue that was flagged during the course of trial as well as argument was with respect to the consent taken from the parents of the deceased and it was argued on behalf of the complainant that his child died due to the negligence on the part of the accused herein but also that the consent was not duly obtained and even the risk underlying the present surgery was not duly communicated and further that the consent form was signed as a routine formality, that the father was not even aware of it.
89. It is apt to reproduce the law as has been laid down by Hon'ble Supreme Court of India in Samira Kohli v. Dr. Prabha Manchanda, (2008) 2 SCC 1 where nature and meaning of consent has been defined as:-
18. Consent in the context of a doctor-patient relationship, means the grant of permission by the patient for an act to be carried out by the doctor, such as a diagnostic, surgical or therapeutic procedure. Consent can be implied in some circumstances from the action of the patient. For example, when a patient enters a Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 172 of 345 dentist's clinic and sits in the dental chair, his consent is implied for examination, diagnosis and consultation. Except where consent can be clearly and obviously implied, there should be express consent. There is, however, a significant difference in the nature of express consent of the patient, known as "real consent" in UK and as "informed consent" in America. In UK, the elements of consent are defined with reference to the patient and a consent is considered to be valid and "real" when (i) the patient gives it voluntarily without any coercion; (ii) the patient has the capacity and competence to give consent; and (iii) the patient has the minimum of adequate level of information about the nature of the procedure to which he is consenting to. On the other hand, the concept of "informed consent" developed by American Courts, while retaining the basic requirements of consent, shifts the emphasis on the doctor's duty to disclose the necessary information to the patient to secure his consent. "Informed consent"
is defined in Taber's Cyclopedic Medical
Dictionary thus:
"Consent that is given by a person after receipt of the following information: the nature and purpose of the proposed procedure or treatment; the Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 173 of 345 expected outcome and the likelihood of success;
the risks; the alternatives to the procedure and supporting information regarding those alternatives; and the effect of no treatment or procedure, including the effect on the prognosis and the material risks associated with no treatment. Also included are instructions concerning what should be done if the procedure turns out to be harmful or unsuccessful."
90. The Hon'ble Supreme Court has summarised the principles relating to consent in aforesaid case20 as:-
49. We may now summarise principles relating to consent as follows:
(i) A doctor has to seek and secure the consent of the patient before commencing a "treatment"
(the term "treatment" includes surgery also). The consent so obtained should be real and valid, which means that: the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what he is consenting to.
20 Samira Kohli v. Dr. Prabha Manchanda, (2008) 2 SCC 1 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 174 of 345
(ii) The "adequate information" to be furnished by the doctor (or a member of his team) who treats the patient, should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment or not. This means that the doctor should disclose
(a) nature and procedure of the treatment and its purpose, benefits and effect; (b) alternatives if any available; (c) an outline of the substantial risks; and (d) adverse consequences of refusing treatment. But there is no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment. Similarly, there is no need to explain the remote or theoretical risks of refusal to take treatment which may persuade a patient to undergo a fanciful or unnecessary treatment. A balance should be achieved between the need for disclosing necessary and adequate information and at the same time avoid the possibility of the patient being deterred from agreeing to a necessary treatment or offering to undergo an unnecessary treatment.
(iii) Consent given only for a diagnostic procedure, cannot be considered as consent for therapeutic treatment. Consent given for a Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 175 of 345 specific treatment procedure will not be valid for conducting some other treatment procedure. The fact that the unauthorised additional surgery is beneficial to the patient, or that it would save considerable time and expense to the patient, or would relieve the patient from pain and suffering in future, are not grounds of defence in an action in tort for negligence or assault and battery. The only exception to this rule is where the additional procedure though unauthorised, is necessary in order to save the life or preserve the health of the patient and it would be unreasonable to delay such unauthorised procedure until patient regains consciousness and takes a decision.
(iv) There can be a common consent for diagnostic and operative procedures where they are contemplated. There can also be a common consent for a particular surgical procedure and an additional or further procedure that may become necessary during the course of surgery.
(v) The nature and extent of information to be furnished by the doctor to the patient to secure the consent need not be of the stringent and high degree mentioned in Canterbury [464 F 2d 772 : 150 US App DC 263 (1972)] but Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 176 of 345 should be of the extent which is accepted as normal and proper by a body of medical men skilled and experienced in the particular field. It will depend upon the physical and mental condition of the patient, the nature of treatment, and the risk and consequences attached to the treatment.
91. It was also observed that stringent standard of consent such as "reasonably prudent patient test" has been overlooked in comparison to "real consent" by taking into consideration of ground realities in medical and health care in our country. The same is reproduced here as:-
50. We may note here that Courts in Canada and Australia have moved towards Canterbury [464 F 2d 772 : 150 US App DC 263 (1972)] standard of disclosure and informed consent, vide Reibl v. Hughes [(1980) 114 DLR 3d 1 : (1980) 2 SCR 880 : (1980) 2 RSC 880 (Can SC)] decided by the Canadian Supreme Court and Rogers v.
Whitaker [109 ALR 625 : 67 ALJR 47 : (1993) 4 Medical Law Rep 79 (1992)] decided by the High Court of Australia. Even in England there is a tendency to make the doctor's duty to inform more stringent than Bolam test adopted in Sidaway [1985 AC 871 : (1985) 2 WLR 480 :
(1985) 1 All ER 643 (HL)] . Lord Scarman's Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 177 of 345 minority view in Sidaway [1985 AC 871 : (1985) 2 WLR 480 : (1985) 1 All ER 643 (HL)] favouring Canterbury [464 F 2d 772 : 150 US App DC 263 (1972)] , in course of time, may ultimately become the law in England. A beginning has been made in Bolitho v. City and Hackney Health Authority [1998 AC 232 :
(1997) 3 WLR 115 : (1997) 4 All ER 771 (HL)] and Pearce v. United Bristol Healthcare NHS Trust [(1999) 48 BMLR 118 : (1999) PIQR 53 :
(1999) ECC 167]. We have, however,
consciously preferred the "real consent"
concept evolved in Bolam [(1957) 1 WLR 582 : (1957) 2 All ER 118] and Sidaway [1985 AC 871 : (1985) 2 WLR 480 : (1985) 1 All ER 643 (HL)] in preference to the "reasonably prudent patient test" in Canterbury [464 F 2d 772 : 150 US App DC 263 (1972)] , having regard to the ground realities in medical and health care in India. But if medical practitioners and private hospitals become more and more commercialised, and if there is a corresponding increase in the awareness of patient's rights among the public, inevitably, a day may come when we may have to move towards Canterbury [464 F 2d 772 : 150 US App DC 263 (1972)] .
But not for the present.
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92. Aforementioned law as laid down by Hon'ble Supreme Court of India clearly lays down the approach as to the consent that has to be taken from the patient and in the present case, from the parents of the deceased. The consent form in the present case is Ex.PW-16/DX & Ex.PW-16/DY which clearly reveals that consent form was filled by the father of the disease herein wherein he has authorised Dr Anil Handa (Accused no. 1) to administer such treatment as necessary and to perform the operation and such additional operation or procedure as would be necessary during the course of operation procedure. It has been further stated that he also consents to the administration of such anaesthetic as he considered necessary for any of these purposes and it was also authorised that the process will be performed at Shri Balaji Hospital (Pvt.) Ltd, 195, Deepali (Outer Ring Road), Pitampura or appropriate by him / her.
93. Ld. counsel for accused no. 1 have argued that the consent and undertakings were given by the father of the patient to Balaji Hospital after admission under two doctors while arguements on behalf of accused no. 2 and 3 were that as per Consent forms PW-16/DX and PW-16/DY, it is the Surgeon's responsibility during the entire course of treatment for taking all decision as to who do what and when and how. Even Surgeon was given the consent for "administration of such anaesthetic" as considered necessary and also to designate his assistant and/or colleagues, that it was only the sole responsibility of the Surgeon and the hospital administration is also not liable as the patient has chosen the Surgeon and who in turn has chosen the Hospital.
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94. Such line of arguments on behalf of both the Counsel is not only mutually-destructive to their own case but also are in consonance with vicious cycle of shirking of their duties and responsibilities and blaming each other to pass the buck upon the other. It is important to mention herein that doctor operating upon patient without consent would be liable for assault / battery in tort. If one has to rely upon the arguments that have been forwarded on behalf of the Counsels of the accused, not even minute would be wasted in imposing upon them the liability in Torts. But that is not that this Court has to delve into for this Court has to only inquire holistically the issue of gross negligence.
95. However this Court refrains itself from relying upon the line of argument that have been taken by both the Ld. Counsels for all the accused and would navigate at Ex.PW16/DX & Ex.PW16/DY to churn out legal implication. It is apparent that the consent form bears the big heading of Shri Balaji Hospital (P) Ltd. wherein there have been impressed the signatures of the father of the deceased which stands proven and it also affirmatively mentioned in the fine prints about the Consent for Surgery/Procedure and also with respect to the anaesthetic and even the authorisation has been given qua Shri Balaji Hospital (P) Ltd. This specifically rules out the possibility that accused no. 1 and the Hospital and one who is in effective in-charge of, and was responsible for the hospital administration i.e Accused no. 2 have not been given consent to operate upon the deceased Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 180 of 345 otherwise they are straight away are liable in tort for assault/battery.
96. The point however remains is whether the Anaesthetist has been given consent to operate upon the deceased by the Guardian of the deceased. In the present case, it is not ruled out that accused no. 3 Dr. Vivek Kumar Mangla is an anaesthetist. Only two possibility arises to employ accused no. 3 as an anaesthetist. From the records it is not clear whether the accused no. 3 was employed on the instruction of accused no. 1 or was consulted with the Shri Balaji Hospital (P) Ltd under the directorship of accused no. 2. It is not that the accused is no. 3, Dr. Vivek Kumar Mangla came all of a sudden out of the blue and have performed and have assisted the surgeon in this operation. This is also settled law that consent cannot be delegated to the extent that one can shirk off one's duty. Either way, accused no. 3 is covered under the any of the mode through which he was employed, whether on the instruction of accused no. 1 or being as a consultant with Shri Balaji Hospital (P) Ltd. Therefore, either way the consent for anaesthesia is well covered by Ex.PW16/DY and it cannot be said that accused no. 3 was operating illegally but rather within the authorisation of the consent form i.e Ex.PW-16/DX & Ex.PW-16/DY. His mode of involvement in the present case though however do not remain matter of speculation as Ex.DW1/1 reveals accused no. 3 as Consultant Anaesthetist, Balaji Hospital.
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97. Further as to whether this consent was within the bounds of the dictum as passed by Hon'ble Supreme Court of India in the case of Samira Kohli v. Dr. Prabha Manchanda21. It has already come on record as per the testimony of the parents (PW16 & PW19) that the deceased was to be operated for the treatment of nose and the disease was known to the father of the deceased PW16 as adenoids and it has been categorically held in Samira Kohli (Supra) that there is no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment. Similarly, there is no need to explain the remote or theoretical risks of refusal to take treatment which may persuade a patient to undergo a fanciful or unnecessary treatment. A balance should be achieved between the need for disclosing necessary and adequate information and at the same time avoid the possibility of the patient being deterred from agreeing to a necessary treatment or offering to undergo an unnecessary treatment and henceforth though there is complication of bleeding in the surgery of adenoids and has been admitted by PW1, PW2, PW4 and the standard textbooks also talks about such complication however it is commonly known that surgery of tonsils and adenoids are taken frequently and chances of mortality in such cases are rare therefore the risk associated in the present operation / surgery was no higher than the risk of surgery as taken in other operations as well. As for the standard textbook that was referred already, it is apparent that the adenoidectomy is no minor operation and therefore it is 21(2008) 2 SCC 1 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 182 of 345 presumed that the complications and risk that is associated with it is not something which is higher than other operations normally undertaken, though not minor operations. Therefore this Court holds that the real consent was obtained in the present case well within the margin of risk that is associated with each and every surgery. The consent taken herein is the real consent well within the parameter as propounded by Hon'ble Supreme Court of India.
98. Therefore this Court holds that no instance can be found wherein it can be held that there was any gross negligence on the part of all the accused herein at the stage of preoperative care and management and it is well within the scope of standard, reasonable, competent medical practitioner would follow with reasonable degree of care and skill and knowledge.
INTRA-OPERATIVE STAGE
99. Original Operation Theatre notes placed on record which were duly seized during the course of investigation clearly reflects that Adenoidectomy under General Anaesthesia was undergone with insertion of endoscope through nasal passage. As this Court have already concluded that disease was correctly diagnosed, and pre-operative care and management did not manifested gross negligence, the appreciation of evidence has to be undertaken to find out gross negligence of the all the accused at intra-operative stage.
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100. It is uncontroversial fact that operation of master Komal Khatri was taken at Balaji Hospital. It is in the testimony of the father of the deceased PW16, that he went to the said hospital along with his child at 6:30 AM wherein he was taken to operation theatre. There he claims to have met all the three accused. Though accused no. 1 and accused no. 3 are without doubt our present at the appointed day of operation at the scheduled time, however the presence of accused no. 2 at around 6:30 AM in the morning of 30.09.2004, is yet to be looked forward.
101. It has been argued on behalf of the Counsel for the Accused no. 1 and accused no. 3 that the task of surgeon and anaesthetist are at odds with each other and same can be compartmentalised to the extent that during the operation certain stages could be assigned solely to be responsibility of either surgeon or anaesthetist but both cannot be held responsible together at any of the stage.
102. It has been argued on behalf of accused no. 1 that that the entire process of operation can be divided into three compartments, one is that of the Surgeon, who would diagnose and advise surgery, conduct the surgery and attend to any post operational surgical complications, if reported. The second compartment is controlled and managed by Dr. Mangla who is responsible for consciousness, air ways, prevention of aspiration into the windpipe on the operation table and immediately after anaesthesia till the patient is able to safeguard his air way and is Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 184 of 345 responsible for the post anaesthesia complications. While on behalf of accused no. 3, it has been argued that Surgeon was the master of the operation and Anaesthetist was not free but was to work under the direction and control of Surgeon. Such arguments do not inspire confidence and cannot be relied upon.
103. One of the textbook on the Medical Jurisprudence22 had opined that such dividing line between the responsibility of Surgeon and Anaesthetist cannot be well defines and the excerpts are being reproduced here:-
Investigation of the so-called anaesthetic deaths is by no means easy. The dividing line of responsibility between the surgeon and the anaesthetist cannot be well defined. While the surgeon is responsible for his decision to operate, the extent of operation, and whether to complete or abort it in the event of a problem, he is to be guided by the anaesthetist as to the patient's pre- operative state and his condition during the operation.
To maintain the patient's physical state by intravenous fluid replacement therapy is a function of the anaesthetis during operation, and of the surgical team, thereafter.
The presence of the surgeon, anaesthetist and forensic pathologist is essential so that agreement can be reached on what was actually found at 22 Parikh's Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology, Eight Edition, CBS Publishers & Distributors Pvt. Ltd, Page 42 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 185 of 345 autopsy. There should be a free and full discussion between them regards the events leading to death as functional problems, like vagal inhibition, spasm of the glottis, cardiac arrhythmia, and hypotension leave no trace at autopsy.
The pathological evidence is mainly intended: (1) to discover natural disease, (2) to exclude mechanical blockage, and (3) to demonstrate morphological changes in the brain due to hypoxia and these include diffuse severe leucoencephalopathy of the cerebral hemispheres, demyelination and obliteration of axons, and infarction of the basal ganglia. The following guidelines should be kept in mind:
1. It is essential that the surgical and anaesthetic devices, e.g. indwelling needles, intravascular canulae, self-retaining catheters, endotracheal tubes, monitoring electrodes, etc. that may have been introduced into the patient should not be removed before autopsy as their proper placement and patency may to be checked.
2. In case of suspected malposition of an endotracheal tube, a pre-autopsy X-ray in AP and lateral views is necessary.
3. In case of failure of any equipment, expert examination is essential.
4. The pathologist may find significant pre-
existing disease, e.g. lung disease, ischaemic heart Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 186 of 345 disease, hypertension or diabetes. It is then necessary to determine, if it was noted or not, and if not, whether it should have been noted before the operation.
5. Care must be taken to detect any surgical emphysema, pneumothorax or air embolism.
Where infusion or transfusion mishap is suspected, the possibility of air embolism should be considered.
6. Toxicological analysis may indicate overdosage of the anaesthetic or other therapeutic agent. Preoperative blood or fluid samples, if available, are helpful to check blood group in transfusion mishaps, and to assess any biochemical or enzymatic abnormalities, e.g. creatine phosphokinase in malignant hyperthermia, that may be responsible for death.
104. It is pertinent herein to illustrate the time line of the operation. PW16 i.e father of the deceased stated that after 7 AM, the surgeon conducted the surgery upon his child and thereafter came out of operation theatre stating that the operation of the child was successful and his child would gain consciousness after some time. Thereafter both the accused no. 1 and accused no. 3 left the hospital. At 7:20 AM, the child was shifted to the ward and the child was lying in an up turn position (in medical language, post tonsillectomy position) and as per PW 16, he was in such a situation as anaesthetic medicine were given to the Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 187 of 345 child. The fact that the child was shifted at 7:20 AM also stands corroborated by the notes of anaesthetist which stated the Time of Finish (TOF) to be 7:15 AM. Therefore it can be safely concluded that the surgery took place between 7 AM to 7:20 AM without any shadow of doubt. The testimony of PW16 that the child was lying in Upturn Position confirms that the prescription provided by the standard and authentic textbooks that after the surgery, the patient has to be kept in post-tonsillectomy position so that any bleeding, if it occurs, the blood will run out of the mouth and nose and not run into an unprotected larynx. Thus the child should lie on the side with the head below the level of the shoulders.
105. It can also be safely concluded that during surgery, firstly the anaesthetist would have employed general anaesthesia with the help of endotracheal tube (this process is referred to at intubation) and thereafter when the patient would have been under the effect of anaesthesia, endoscope would have been inserted through nose to take the view of the adenoids tisssue which were to be operated upon and with the help of instruments, the naso-pharynx area must have been operated using surgical instruments and after the requisite tissue have been removed, the area would have been packed so that no bleeding could occur and when the surgeon would have operated on this part of the surgery, meanwhile the anaesthetist must have been keeping a close watch upon the patient and to his vitals. After the surgeon has operated upon the tissues and has come to the conclusion that there was no bleeding (which in medical terminology refers to Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 188 of 345 homeostasis achieved), the anaesthetist thereafter must have moved further to extubate the endo-tracheal tube.
106. One of the issue that has been flagged during the intra- operative stage has been the issue of bleeding and whether the patient has no instance of bleeding when he was shifted to the ward. Anaesthetist had put the E.T. Tube in windpipe for consciousness and prevention of aspiration in windpipe (Exhibit X5). It is pertinent to mention herein that PW-4 had deposed that "it is correct that there is a process of intubation before surgery and extubation of the trachea after the adenoid surgery. Intubation is done to ventilate and protect the air way from secretions and blood". Most important piece of question that was asked from PW-4 has been "Can extubation be done if there is active bleeding from the operational site?" to which PW-4 answered "NO". It is important to mention herein by PW4 a senior consultant of anaesthesia and critical care that have come on record. The Court can safely rely upon his opinion as a prosecution witness that no extubation can be done if there is active bleeding. It is not in doubt that as per the testimony of the father of the child, the patient was shifted to ward and no any extraneous instrument was upon him other than that he was into post-tonsillectomy position. Therefore at this stage it is safely concluded that by way of extubation as would have been done by accused no. 3, there could have been no prospect of any active bleeding as the process of exhibition could not have taken place had there had been any active bleeding. Further as per the father of Patient PW16, his child was shifted at 7:20 AM henceforth at Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 189 of 345 intraoperative stage. As to the issue of E.T. Tube which is used in such operation, affirmation has also been deposed by PW-5 to whom question was put "Is it correct that E.T. tube is used during an adenoid operation to prevent aspiration of blood into the windpipe?" And which he answered "It is correct". No complication has arisen up to this stage and it cannot be said that any lapse has been shown till this stage as any step was undertaken which a prudent doctor with reasonable skill and knowledge would not have undertook. Further had there been any active bleeding, the Surgeon and the Anaesthetist would have certainly made note of it. Even otherwise, when the patient was shifted to the ward, had there been any such instance of bleeding, the attendants therein, though not cited as witness by the prosecution for reason best known to them, would have made note of it and must have alerted. Even otherwise, after shifting to the ward, the vitals were recorded till 8:45 AM and there had been no fluctuation in blood pressure and pulse. Had there been any bleeding, even internal, the blood pressure would have swooped down and pulse would have shooted up. This finding also stands corroborated and this scientific deposition has also been deposed by PW1, PW2, PW4. The testimony of the father of the deceased, PW16 that after the operation, when the child was being shifted to ward, the blood was upon the face of the child do not inspire confidence. Had it been such a case, the sight or even a drop of blood on the face of child or gown would have created hue & cry. This fact is being deposed of around 7:20AM
- 7:30 AM. What would have been reason for silence on the part of parents to be numb from 7:20 AM to 8:45 AM remains Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 190 of 345 unexplained. Moreover the father of the deceased had raised concern after 8:45 AM where he had made call to accused no. 1 when child had gone serious reveals that there was every opportunity to raise concern, had there been any issue at 7:20 AM but since there was no serious concern and surgery was uneventful, therefore no hue & cry was raised on and around 7:20 AM.
107. The other issue that have crept in at this stage is the issue of reflexes i.e Cough Reflex, Swallowing Reflex and Gag Reflex. It is the statement of prosecution witness PW4 that 'Cough reflex and swallowing reflex can be detected on the OT (Operation Theater) table but for Gag reflex we have to simulate posterior pharyngeal wall. So patient is extubated after the cough reflex Gag reflex develops. First cough reflex comes then swallowing reflex. Gag reflex is not tested. It is correct that after seeing the PM report finding there is a collection of 200ml blood in the stomach which has come due to swallowing reflex from the opening site.' The prosecution witness PW4 himself states that extubation is done only after cough reflex develops. The allegation with respect to reflexes as evident in Ex.PW2/1 is not that such reflexes has not developed or prosecution had been able to prove that such reflexes had not developed by pointing towards any symptom. Rather the allegations are that such reflexes has not been mentioned elaborately. This issue pertains to notes making on the part of anaesthetist. This Court for the reason that something has been mentioned elaborately cannot suffice to hold accused herein for gross-negligence. Henceforth Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 191 of 345 no gross negligence could be found at the intra-operative stage on the part of accused and in particular accused no. 1 and 3.
POST-OPERATIVE STAGE
108. After the patient was shifted at 7:20 AM from the operation theatre to the ward, then from there on the post- operative care and management commences which involves regular recording of pulse rate (every 15 minutes for the first two hours, every 30 minutes for the next two hours and hourly thereafter) and close observation of child breathing pattern. As already mentioned from the standard textbook, a semi-conscious child with blood in the pharynx will always make an audible noise on respiration and this should also be an indication to examine the child's pharynx for haemorrhage. Excessive swallowing or vomiting of blood is a sign that bleeding has occurred and here again the pharynx should be examined. A rapidly rising pulse rate with a child looking increasingly grey in colour is also an indication that haemorrhage is occurring.23
109. The presence of original operating theatre notes clearly reflects that there is noting of the vitals of the patient at 8 AM, 8:30 AM, 8:45 AM, 9:30 AM, 11:35 AM. During the trial and final arguments, it has come on record that the patient turned serious between 8:45 AM and 9:30 AM and as per the notes, was declared dead at 11:35 AM. The issue that arises at the post-
23 Scott-Brown's Otolaryngology, Sixth Edition, Edited By David A. Adams and Michael J. Cinnamond, Volume 6, Chapter 18, Pages 6/18/1 to 6/18/14, published by Butterworth - Heinemann Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 192 of 345 operative stage is whether the patient was duly attended, his noting of vitals were as per the standard protocol, that the complication of bleeding which can be detected through audible noise on respiration, excessive swallowing or vomiting of blood and rapidly rising pulse rate were carefully attended to and in case of the patient turning serious, whether Doctors has attended in time and resuscitation was done as aggressively as is supposed to be.
110. As far as noting of vitals is concerned, it is apparent that the patient has been conscious, his pulse rate, blood pressure, chest, whether he was arousable or not has been noted down and till 8:45 AM, the patient have been sleeping comfortably. The blood pressure has been noted and other vitals as well. Thereafter there is noting of 9:30 A.M. which states "Pt in ICU. Peripheral pulse not traceable. No respiration. Pt. put on respirator after intubation. Intracardiac adrenaline give. Suction done." Thereafter at 11:35 AM reveals that pupil dilated and fixed, Blood Pressure, pulse, respiration not recordable, all life-saving measures taken but the patient's life could not be saved and therefore patient was declared dead at 11:35 AM which was under the signatures of the Surgeon (accused no. 1).
111. It is apparent herein that as far as noting is concerned, no fault could be attributed. As far as there has been allegations of omission between 8.45 A.M. and 9:30 AM is concerned, but it is natural as the process of resuscitation upon the patient was being undertaken and it would not be expected at the time when Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 193 of 345 emergency had occurred, the Doctor is expected to write notes rather than to save the patient. Even noting cannot be said to have been tampered with for the reason that if there would have been any such attempt to do so, noting between 8:45 AM and 9:30 AM could have been fabricated but it is not on record. Had there been any such intention to fabricate the notes, the status between 8:45 AM and 9:30 AM must have found its way into note sheet, but it is otherwise.
112. The fact of noting at several intervals have also been espoused by PW-4 Dr. L.M. Sharma who deposed that "it is correct that after the surgery as per the protocol, the doctor operating and the nursing staff should examine the patient after every 15 minutes for 1 hour after the adenoid surgery'.
113. There also has been issue that at 12:30 PM on the same date, the patient was shown to be conscious, respiration normal and no bleeding, to be transferred to semiprivate ward at 12:30 PM however the patient has died at 11:35 AM, therefore there appears to be apparent contradiction. However the perusal of the original operation theatre notes reveals very clearly that at 12:30 PM, the time has been marked and is appended with the instruction to monitor (This specific term has been used at Mark X) pulse and Blood Pressure and at the time when such instruction was given, the patient was conscious and the term used is to be transferred to semiprivate ward which is natural as after the extubation, the patient was to be shifted to the ward.
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114. This also stands corroborated from the testimony of prosecution witness PW4 who deposed that "it is correct that there is a protocol that the patient has to be observed after an interval of 15 minutes then after one hour after the operation. It is also correct that the pulse and BP was also to be monitored at the above said intervals". Even specific question was asked from PW4 by the Ld. Counsel for Accused no. 1 as "I put it to you that Dr. Handa has mentioned the time 12:30 P.M. on the document Mark X2 with regard to the instructions for the attending staff to attend and observe patient till 12:30 P.M. what you have to say?" and this witness answered "It is correct that he has asked to monitor the vitals of the patients every half hour till 12:30 P.M.". This clearly explains the position with respect to the ordeal of 12:30 PM.
115. Even otherwise, accused no. 1 have already declared the patient dead at 11:35 AM and accused no. 2 have already informed the police officials at 11:50 AM, that death summary in the present case was prepared by Accused no. 1 at 12:35 PM, and DD no. 18 was duly recorded at 11:50 AM on 30.09.2004 by PW-21, who he was intimated by accused no. 2 that one child has expired during treatment. Therefore there does not remain any doubt that 12:30 PM written upon Mark X is an instruction to the staff to record the vitals till the time noted down as per standard protocol.
116. It is further important to mention herein that despite the witnesses such as Sh. Kuldeep, CT Technician, Ms. Sheeja (Staff Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 195 of 345 nurse), Ms. Alice (Staff nurse), Anil (ward boy), Dr. Ashish Gautam were available, as has been stated in the statement given by Naresh Pratap Singh to IO Azad Singh, who had duly noted his statement under Section 161 Cr.P.C., who was dropped from being examined and prosecution even have failed to even bring on record and to testify the aforesaid material witnesses who could have deposed with respect to what they have attended to and what occurred. Therefore fact that at post-operative stage, the patient was well attended by staff nurse, ward boy and Doctor cannot be ruled out and failure of the prosecution to bring them as a witnesses only goes adverse to it.
117. Further first I.O. S.I. Sriram PW-11 had deposed that "I had not examined any doctor or the staff of the ward from where the body of the deceased was taken into possession.". I.O. Rtd. ACP Narender Gulati PW-12 had deposed "I have seen statement of Naresh Pratap dated 11.10.2004 in which he mentioned the name of the doctors and the staff who have attended the deceased in the operation theatre / in ward as well as in I.C.U. I had not joined any doctor or staff of the hospital during the investigation.".
118. Even I.O. Inspector Azad Singh PW-7 had deposed "I do not remember names of the doctors and attending staff and nurse disclosed by the administrative officer in his statement recorded U/s 161 Cr.P.C. of the Balaji Hospital. During his cross- examination, he went on to state that "I would not like to see the Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 196 of 345 statement of Naresh Pratap written by me". This is interpreted against the prosecution.
119. As to the aspect that when patient has gone serious, he was not properly attended to by the doctors, the evidences reveals that the call was given by the father of the child to accused no. 1 which have come in his testimony (PW16) and it has also come by way of evidence from the father and the mother of the child (PW16 and PW19) that all the accused have attended to the child at the time when he was taken again into operation theatre at the time when the child had turned serious.
120. Thereafter, resuscitation measures were taken which is well corroborated by the findings of the Postmortem Report as well as notes of operation theatre at 9:30 AM wherein it has been observed "Pt in ICU. Peripheral pulse not traceable. No respiration. Pt. put on respirator after intubation. Intracardiac adrenaline give. Suction done" and PM Report Ex.PW1/A reveals one injection prick mark over pre-cardial area over Lt. Side chest which is consistent with Intracardiac adrenaline given. This fact is also admitted by PW1 who had deposed that such prick mark is due to resuscitation. PW4 Dr. L.M. Sharma even deposed "It is correct that Dr. Anil Handa had taken the preventive measures as noted in the case history. It is correct that Dr. Anil Handa taken appropriate resuscitative measures at 9:30 A.M. Lateral position after the surgery is done so that any collected blood can come out from the mouth". Nothing has been brought in by the prosecution to show that the standard Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 197 of 345 protocol with respect to resuscitation has not been followed or any doctor in the given facts and circumstances having reasonable skill and knowledge would have done otherwise in his prudence as has been done by the doctors herein.
121. Further the argument that has been laid out on behalf of accused no. 1 that had the windpipe been choked with blood at that point of time, this would not have been possible. This is in sharp contradiction to post mortem findings of blood and blood clots deep down the trachea and asphyxia as cause of death. Since bleeding was not there, the same is not mentioned and the very fact that suction was done after intubation proves that airway was clear, otherwise, had there been any blood in the oral cavity, it would have required suction before intubation as intubation requires clean and clear view of inlet of windpipe. This piece of argument inspires confidence in its reasonability and it is scientifically logical in its averments in the opinion of the Court.
122. It is also important to mention herein that one of the essential component to trace the bleeding is fluctuating blood pressure and pulse. However PW2 admitted in his deposition that no fact of fluctuation of blood pressure and pulse was recorded in the treatment paper of Balaji hospitals. Further PW4 deposed that bleeding is a known complication of a Adenoid operation. It can be immediate or delayed bleeding. Even after successful operation, bleeding can occur for which re- exploration is required. It is correct that in the case sheet of the Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 198 of 345 operation of the deceased, there is no noting of bleeding of nasopharynx. It is correct that there is no mention of time when the bleeding occurred after the operation in the post-mortem report. However, post-mortem report says that the massive blood clot and liquid blood up to the division of Trachea is seen. It is correct that the blood pressure of the patient would go down and the pulse will go up if the patient starts bleeding after the operation and PW4 for after going through the file as well Case sheets of the hospital stated that the pulse and blood pressure were normal till 8:45 AM, however at 9:30 AM patient was found to have no pulse, no blood pressure and no respiration. He further deposed that it is correct that during resuscitation, there can be slight or passive bleeding during intubation.
123. In view aforesaid deposition of prosecution witness PW2 and PW4, it is apparent that no instance of bleeding have been reported or any of the data recorded signifies so and further no attendants who were present at the operation theatre as well as in the ward have been examined as mentioned above. The notes of the vitals as upon the document speaks for itself and no fluctuation in blood pressure and pulse could be traced which would have pointed towards any bleeding. The standard protocols were duly conformed to and no gross negligence could be found at this post operative stage as far as any noting down or resuscitation or in terms of paying careful attention to the vitals are concerned or qua the timely attention to the patient when he has gone serious and further nothing has been brought on record which could prove that the resuscitation that was undertaken was Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 199 of 345 otherwise than a doctor with reasonable prudence and with skill and knowledge would have not have undertaken.
POST MORTEM AND ALLIED ISSUES
124. Post-mortem board said to have been constituted by the Principal Secretary (Health) GNCT, Delhi vide order no. F- 342/114/2004-H&FW dt. 01.10.2004 as deposed by PW1. Perusal of record reveals that no such order has been placed on record by the prosecution to affirm the same, however only record that could be found with respect to conducting the autopsy on the body of the deceased is Ex. PW1/A and request by the DCP (Headquarter) dated 01.10.2004 to the Deputy Secretary(Home), GNCT of Delhi where requests have been sent regarding the Constitution of the medical board. There is also a photocopy of an order dated 01.10.2400 under the signatures of Office Superintendent, wherein the request of the DCP (Headquarter) was acceded to and Dr K.L. Sharma, Dr Kulbhushan Goel and Dr V. K. Jha were constituted as chairman and two members respectively. Though these documents have not been tendered in evidence, however prima facie these are the orders and instances wherein the post-mortem board was constituted.
125. Pursuant to the order of the Deputy Secretary(Home), GNCT of Delhi, the post-mortem report was prepared which was tendered in evidence as Ex.PW1/A conducted on 01.10.2004 which started at after office hours at 5:30 PM and was completed Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 200 of 345 at 6:45 PM as per Ex.PW1/A. The post-mortem report reveals the sudden death of the child followed by an operation of Naso- Pharynx on dated 30.09.2004 and the death was declared at 11:35 AM on the same day by Shri Balaji Hospital Private Limited, 195, Deepali, Pitampura. The family members have alleged the death due to medical negligence. Dead body recovered in mortuary on 30.9.2004 at 3:30 PM and in inquest paper on 1.10.2004 at 5 PM.
126. As to the external injuries, it reveals that hospital gown this blood smeared. Scalp Hair are blood smeared. Dried blood deposited over face and all surfaces of both ears. One injection break Mark over dorsum of right-hand and one needle prick mark of I.V. Line on dorsum of left hand, one injection prick mark over pre-cardial area over left side chest. No incision mark over the nasal orifice, palate (soft) or at zygomatic area seen. All intact.
127. As to neck region, it has been observed that the nasal cavity is clear but the Naso-pharyngal clear shows raw surface with a small tag of tissue which was oozing blood.
128. As to the chest region, it is observed lungs are profusely edematous and are congested on an oozing blood mixed for. No evidence of any disease seen. Patechial Haemorrage seen over interlobular fissures of both lungs and over epicardium.
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129. As to the stomach region, it is observed that about 200 ml of blood and blood clots. Submucous haemorrhage seen at places. Urinary bladder and rectum were half filled.
130. The cause of death have been said to be Asphyxia consequent to choking of the wind pipe by blood and blood clots, aspirated as a result of bleeding from the law area of naso- pharynx done by surgical intervention. Raw area of Naso- pharynx is ante-mortem in nature. No evidence of disease except this raw area according to post-mortem finding. Times since death is about 32 hours.
131. Total inquest paper i.e 35 as well as 2 X-rays films are returned with this report to the police. Blood and viscera along with pieces of brain and lungs were preserved to rule out the overdose of anaesthesia
132. The opinion was sought by IO Shri Ram vide Ex.PW1/D6 wherein it was a question to comment upon the medical negligence and in answer to that, the medical board constituted on 01.10.2004 categorically stated which is being reproduced here :-
"In response to the query is no. 1 and 2, error of pre-operative diagnosis and subsequent post management by the surgeon and anaesthetist(as evident by their statement(written) in which they Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 202 of 345 have agreed that the special investigation like CT scan, MRI, Angiography is not done in this case) cannot be ruled out. In response to the query no. 3, vicarious liability of the Balaji Hospital in our view stands.
In response to the query no. 4, post-mortem findings are consistent with lack of adequate care timely by surgeon and anaesthetist is suggestive which resulted in the death of the child(deceased) as mentioned on page ante."
133. Upon the opinion furnished upon medical negligence by the medical board constituted on 01.10.2004 and post-mortem conducted, vide Ex.PW1/A, an FIR was lodged in the present case on 06.10.2004.
134. One of the issue that have crept in is the timing of the post-mortem report. As per Ex.PW1/A, it commenced at 5:30 PM and completed at 6:45 PM on 01.10.2004. Admittedly the same was conducted after the office hours. The testimony of PW1 revealed that though he admitted that the post-mortem report was prepared in late hours in the case of law and order problem but when asked about what such law and order problem was, he could not specify the nature of such problem.
135. Further this is at odd from the testimony of PW11 IO SI Shriram who had testified categorically that on 01.10.2004 in the morning, the post-mortem of the deceased was conducted in Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 203 of 345 SGM Hospital, Delhi. It is not in controversy that IO SI Shriram was present at the time of conduct of such post-mortem upon the deceased however the testimony as given by IO SI Shriram that Post Mortem was conducted in morning and record speaks otherwise is blatant contradictions.
136. It has been argued by the Ld. Counsel for accused no. 2 and 3 that Post Mortem cannot be relied upon and the same is not substantive piece of evidence, however though Post Mortem Report Ex.PW1/A is not substantive piece of evidence, however same can be proved by the Doctor who have prepared by stepping into witness box and can be used for corroboration and contradiction.
137. In the present case, all the three doctors who prepared the Post Mortem Report have been examined as PW1, PW2 and PW3 and therefore Post Mortem Ex. PW1/A stands proved however it is open for corroboration and contradiction. Reliance is placed upon the Judgment of Ghulam Hassan Beigh v. Mohd. Maqbool Magrey24, passed by Hon'ble Supreme Court of India and in particular paragraph 31 which is being reproduced:-
31. ........The post mortem report, by itself, does not constitute substantive evidence. Whether the "cardio respiratory failure" had any nexus with the incident in question would have to be determined on the basis of the oral evidence of the eye 24 2022 SCC OnLine SC 913 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 204 of 345 witnesses as well as the medical officer concerned i.e. the expert witness who may be examined by the Prosecution as one of its witnesses. To put it in other words, whether the cause of death has any nexus with the alleged assault on the deceased by the accused persons could have been determined only after the recoding of oral evidence of the eye witnesses and the expert witness along with the other substantive evidence on record. The post mortem report of the doctor is his previous statement based on his examination of the dead body. It is not substantive evidence. The doctor's statement in Court is alone the substantive evidence. The post mortem report can be used only to corroborate his statement under Section 157, or to refresh his memory under Section 159, or to contradict his statement in the witness-box under Section 145 of the Evidence Act, 1872. A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 205 of 345 terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the Court.
138. As to the appreciation of expert evidence, it has been categorically held Malay Kumar Ganguly v. Dr. Sukumar Mukherjee25, wherein Court not bound by expert evidence and the relevant observation as relied by the accused is being reproduced here:-
A Court is not bound by the evidence of the experts which is to a large extent advisory in nature. The Court must derive its own conclusion upon considering the opinion of the experts which may be adduced by both sides, cautiously, and upon taking into consideration the authorities on the point on which he deposes.
139. In State (Delhi Admn.) v. Pali Ram 26, it has been held by Hon'ble Supreme Court of India that final call upon Opinion Expert is that of Court and it has been observed:-
31. It is not the province of the expert to act as Judge or Jury. As rightly pointed out in Jitli v. 25 (2009) 9 SCC 221 : (2009) 3 SCC (Civ) 663 : (2010) 2 SCC (Cri) 299 : 2009 SCC OnLine SC 1472 at page 248 26 (1979) 2 SCC 158 : 1979 SCC (Cri) 389 at page 168 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 206 of 345 Jones [AIR 1934 All 273 : ILR 56 All 428] the real function of the expert is to put before the Court all the materials, together with reasons which induce him to come to the conclusion, so that the Court, although not an expert, may form its own judgment by its own observation of those materials. Ordinarily, it is not proper for the Court to ask the expert to give his finding upon any of the issues, whether of law or fact, because, strictly speaking, such issues are for the Court or jury to determine.
140. In Ramesh Chandra Agrawal v. Regency Hospital Ltd27., Hon'ble Supreme Court of India has observed upon expert opinion as:-
22. ....
"Mere assertion without mentioning the data or basis is not evidence, even if it comes from an expert. Where the experts give no real data in support of their opinion, the evidence even though admissible, may be excluded from consideration as affording no assistance in arriving at the correct value."
141. As per the post-mortem report Ex. PW1/A, the hospital gown was blood smeared as well as scalp hair were blood smeared. Dried blood was deposited over the face and upon the 27 (2009) 9 SCC 709 : (2009) 3 SCC (Civ) 840 : 2009 SCC OnLine SC 1625 at page 716 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 207 of 345 surface of both ears. This is in odd contradiction with the death report that was prepared on 30.09.2004 vide Ex.PW10-E wherein under the column against 'injuries or marks of violence the body may have received all with respective wounds and bruises', IO Shriram had categorically mentioned as No. It is pertinent to quote herein two Judgments as Bastiram v. State of Rajasthan28, and particular Para 36, which runs as :-
36. Similarly, a fact stated by a doctor in a post-
mortem report could be rejected by a Court relying on eyewitness testimony, though this would be quite infrequent. In Dayal Singh v. State of Uttaranchal [(2012) 8 SCC 263 : (2012) 4 SCC (Civ) 424 : (2012) 3 SCC (Cri) 838 : (2012) 2 SCC (L&S) 583] the post-mortem report and the oral testimony of the doctor who conducted that examination was that no internal or external injuries were found on the body of the deceased. This Court rejected the "medical evidence" and upheld the view of the trial Court (and the High Court) that the testimony of the eyewitnesses supported by other evidence would prevail over the post-mortem report and testimony of the doctor. It was held : (SCC p. 286, para 41) 28 (2014) 5 SCC 398 : (2014) 2 SCC (Cri) 608 : 2014 SCC OnLine SC 125 at page 408 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 208 of 345 "41. ... The evidence of the eyewitness which was reliable and worthy of credence has justifiably been relied upon by the Court."
142. Further in Darshan Singh v. State of Haryana29, and in particular Paragraph 10 which runs as :-
10. ............... Apart from the fact that the opinion of the doctor as to how an injury was caused cannot override unimpeachable testimony of eyewitnesses in case there is any inconsistency between them, the above opinion of the doctor is not definitive for in his further cross-examination he clarified that the victim and the assailant could be at the same level. ........
143. PW1, Dr. K. Goyal admitted in his deposition that no clothes including gown were sealed at the time of post-mortem conducted on 01.10.2004 and further admitted that the death report is prepared by police official and post-mortem report are at odds with each other with reference to bleeding and blood. Even PW-10, IO SI Shriram categorically testified that he did not collect blood stained clothes/gown of the deceased and in his cross-examination dated 20.08.2019, he admitted that he has not made any observations with regard to the presence of blood in column no. 7 of death report Ex.PW10/E. PW10 had gone to the extent of testifying that he had not SEEN or SEIZED the 29 (1996) 10 SCC 283 : 1996 SCC (Cri) 1261 at page 286 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 209 of 345 bloodstained gown of the deceased. This cast cloud upon the aspect of bleeding. Further the aspect of artefact effect 30 cannot be ruled out.
144. Further it is on record that all the three doctors had completed only their MBBS and only PW2 was MD Forensic. Moreover since the present case pertains to the ENT specialization, it is pertinent that PW1 admitted to the fact that he did not possess any ENT qualification or worked as an ENT. PW1 had no practical experience in conducting adenoid surgery though he was only aware about the history of such surgery.
145. PW2 admitted that he has not done specialisation in ENT and never carried out adenoid surgery and deposed to the extent that the ENT surgeon was not available at the time of formation of medical board. (later on it is found on fact that such deposition on the part of PW2 is not true).
146. PW3 i.e third member of the post-mortem board reports that he is not MD forensic, not conducted any of adenoid surgery, was not ENT surgeon and not even a general surgeon but mere MBBS graduate and never got any opportunity to deal with post- operative care of adenoid surgery but have only read about it during his MBBS Course.
30 See Infra footnote 43-51 wherein artefact effect has been dealt in detail.
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147. This Court is not oblivion to the fact that in a given speciality of medicine, the knowledge have grown so quick, vast and immense that it will be impossible for any specialist to be aware of every development in his or her field. Even the sub- specialist in particular speciality may not be acquainted with the others of the sub-speciality in the same field of the speciality. It is amazing that all the aforesaid three doctors with such qualifications and no experience of the adenoid surgery have commented upon the negligence in the present case. The profession like medicine has its peculiarity wherein mere theoretical knowledge is not enough, but one who had delved into and have practically performed would be at better position to comment upon in such case.
148. It is interesting to note that there have been negative finding upon post mortem report Ex.PW1/A i.e. "No incision mark over the nasal orifice, palate(soft) or at zygomatic area seen. All intact.". Though as far as medico-legal autopsies is concerned, the examination should be meticulous and complete and one should routinely record all positive findings and important negative findings. For example, if there is any head injury, the absence of skull injury would be essential finding however any other essential negative finding creates cloud as the post-mortem report must be consistent within itself. The negative finding in the present case reveals bias in the minds of doctors who were performing the post-mortem as, though they have claimed that they have already gone through the treatment paper of the deceased, and were well aware that the adenoidectomy was Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 211 of 345 performed, however one of the hypothetical reference point for the PW1, PW2 and PW3 was Angiofibroma. The members of the post-mortem board were aware that adenoidectomy was done by endoscopic technique is never done through incisions upon nasal orifice, palate(soft) or at zygomatic area. This only leads to the two conclusion that, PW1, PW2 and PW3 were either totally unaware of the surgery and its intricacies( which is well reflected in their testimony where there was not single ENT surgeon nor they have ever performed adenoidectomy, or had any practical experience with respective post-operative care of such surgery) or the doctors were already biased and in particular outcome bias with respect to the fact that the disease was Angiofibroma rather than Adenoids and to the amazement, that too when they are noting down a negative finding without opening the body. This cast doubt upon the authenticity and credibility of PW1, PW2 and PW3 to comment upon any kind of medical negligence upon the present surgery which was undertaken upon the deceased.
149. This Court by now has not been able to find any error of preoperative diagnosis or subsequent post management by the surgeon and anaesthetist. This Court has by now has concluded that special investigation like CT scan, MRI, Angiography was not warranted and did not amount to gross negligence and has been dealt in detail in the aforesaid section of preoperative stage. As to the aspect of adequate timely care, this Court have held that no gross negligence could be found at the stage of post-operative stage and the doctor concerned Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 212 of 345 performed as a medical professional would have done in given facts and circumstances in his ordinary sense and prudence.
150. In ordinary sense, a person is not liable in criminal law for the acts of the another. However the criminal law also entails the concept of vicarious liability where an act and in some cases even the mens rea of the other person is imputed upon the accused. In such a case, the accused's criminal liability does not rest on anything said or done by such accused but on the acts and the mental state of the another. Most of the time, vicarious liability operates where the offence is one of strict liability but it is not limited to only such crimes. It is settled principle of law that penal law do not entail a concept of vicarious liability unless have been specifically provided for and penal laws are subject to strict interpretation.
151. The issue whether a Director of a company can be vicariously liable for a criminal offence attributed to the company came up for consideration before the Supreme Court in the decision reported as Sunil Bharti Mittal v. CBI31 wherein it was held:
(iii) Circumstances when Director/person in charge of the affairs of the company can also be prosecuted, when the company is an accused person-
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42. No doubt, a corporate entity is an artificial person which acts through its officers, Directors, Managing Director, Chairman, etc. If such a company commits an offence involving mens rea, it would normally be the intent and action of that individual who would act on behalf of the company. It would be more so, when the criminal act is that of conspiracy. However, at the same time, it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statute specifically provides so.
43. Thus, an individual who has perpetrated the commission of an offence on behalf of a company can be made an accused, along with the company, if there is sufficient evidence of his active role coupled with criminal intent. Second situation in which he can be implicated is in those cases where the statutory regime itself attracts the doctrine of vicarious liability, by specifically incorporating such a provision.
44. When the company is the offender, vicarious liability of the Directors cannot be imputed automatically, in the absence of any statutory provision to this effect. One such example is Section 141 of the Negotiable Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 214 of 345 Instruments Act, 1881. In Aneeta Hada [Aneeta Hada v. Godfather Travels & Tours (P) Ltd., (2012) 5 SCC 661 : (2012) 3 SCC (Civ) 350 : (2012) 3 SCC (Cri) 241], the Court noted that if a group of persons that guide the business of the company have the criminal intent, that would be imputed to the body corporate and it is in this backdrop, Section 141 of the Negotiable Instruments Act has to be understood. Such a position is, therefore, because of statutory intention making it a deeming fiction. Here also, the principle of "alter ego", was applied only in one direction, namely, where a group of persons that guide the business had criminal intent, that is to be imputed to the body corporate and not the vice versa. Otherwise, there has to be a specific act attributed to the Director or any other person allegedly in control and management of the company, to the effect that such a person was responsible for the acts committed by or on behalf of the company.
152. In Standard Chartered Bank Vs. Directorate of Enforcement, 2005 SCC (Cri.) 961, Hon'ble Supreme Court of India made following observations regarding criminal liability of the Corporation:-
Case No. 528685/2016FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 215 of 345 "6. There is no dispute that a company is liable to be prosecuted and punished for criminal offences.
Although there are earlier authorities to the effect that corporations cannot commit a crime, the generally accepted modern rule is that except for such crimes as a corporation is held incapable of committing by reason of the fact that they involve personal malicious intent, a corporation may be subject to indictment or other criminal process, although the criminal act is committed through its agents.
8. Inasmuch as all criminal and quasi-criminal offences are creatures of statute, the amenability of the corporation to prosecution necessarily depends upon the terminology employed in the statute. In the case of strict liability, the terminology employed by the legislature is such as to reveal an intent that guilt shall not be predicated upon the automatic breach of the statute but on the establishment of the actus reus, subject to the defence of due diligence. The law is primarily based on the terms of the statutes. In the case of absolute liability where the legislature by the clearest intendment establishes an offence where liability arises instantly upon the breach of the statutory prohibition, no particular state of mind is a prerequisite to guilt.
Case No. 528685/2016FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 216 of 345 Corporations and individual persons stand on the same footing in the face of such a statutory offence. It is a case of automatic primary responsibility. It is only in a case requiring mens rea, a question arises whether a corporation could be attributed with requisite mens rea to prove the guilt. But as we are not concerned with this question in these proceedings, we do not express any opinion on that issue."
153. In Kalpnath Rai Vs. State, 1998 AIR (SC) 201, Hon'ble Supreme Court of India made following observations:-
"The company is not a natural person. We are aware that in many recent penal statutes, companies or corporations are deemed to be offenders on the strength of the acts committed by persons responsible for the management of affairs of such company or corporations e.g. Essential Commodities Act, Prevention of Food Adulteration Act etc. But there is no such provision in TADA which makes the company liable for the acts of its officers. Hence, there is no scope whatsoever to prosecute a company for the offence under Section 3(4) of TADA. The corollary is that the conviction passed against A- 12 is liable to be and these are set aside."Case No. 528685/2016
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154. In Standard Chartered Bank Vs. Vinay Kumar Sood & Ors, 2009 (1) JCC 756, this Court had observed as under:-
"Undisputedly, the petitioner is a bank incorporated in England with limited liability by Royal Charter, 1853 and, therefore, is a corporation/company. A company cannot be in any case held to have committed an offence under Section 500 IPC because; most essential ingredient of the said offence i.e. 'mens rea' would be missing as a company is a juristic entity or an artificial person, whereas a Director is not a company. The company may be made liable for offences, however, if there is anything in the definition or context of a particular Section or a particular statute which would prevent the application of the said section to a limited company, the limited company cannot be proceeded against. There are number of provisions of law in which it would be physically impossible by a limited company to commit the offence. A limited company, therefore, cannot generally be tried for offences where mens rea is essential. Similarly, a company cannot face the punishment of imprisonment for obvious reasons that company cannot be sent to prison by way of a sentence."
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155. From the aforesaid observation of Hon'ble Supreme Court of India, it is apparent that no one can be vicariously liable for an offence unless it has been provided particularly by the legislation. An individual who has perpetrated the commission of an offence on behalf of a company can be made an accused, along with the company, if there is sufficient evidence of his active role coupled with criminal intent. This is more true in respect of separate legal entity as observed in aforesaid judgments.
156. In the present case, accused no. 2 have been arraigned as an accused in capacity of the director of the hospital. Though the members of the Ex. PW1/A (post-mortem board) have opined that vicarious liability of the Balaji Hospital stands but Balaji Hospital though an artificial corporate entity having separate legal personality has not been made accused and in what capacity accused no. 2 has been made accused in the present case is not clear. It has been categorically held in the case of Indraprastha Medical Corp. Ltd. vs State Nct Of Delhi & Ors. on 2 August, 2010, passed by Hon'ble High Court Of Delhi at New Delhi, in Crl. M.C. No. 827/2010 and in particular paragraph 5 which is being reproduced here:-
5. The offence of criminal negligence requires a specific state of mind in respect of the person committing the offence. The offence of medical criminal negligence cannot be fastened on the company since the company can neither treat nor operate a patient of its own. It is the Doctor Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 219 of 345 working in the company who treats & performs operations. It is the Doctor who examines the patients and prescribes medicines. If there is a deliberate or negligent act of the Doctor working in the Corporation/Hospital, it is the liability of the Doctor and not of the Corporation for criminal negligence despite the fact that due to the act of the Doctor of treating patients the Corporation was getting some revenue. These days, all Doctors with big hospitals, are on panels where they have fixed fee for examination of patients and for conducting operations. Out of this fee, a percentage is paid to the hospital. The hospital / company cannot be held liable for the personal negligence of the Doctor in giving wrong treatment. However, if there is an administrative negligence, or a negligence of not providing basic infrastructure, which results into some harm to an aggrieved person or such negligence which is impersonal, the hospital can be held liable. But, in the case of medical negligence, which is personal to the Doctor who gave treatment, the Corporation would not be liable and it is the Doctor who can be indicted for medial criminal negligence.Case No. 528685/2016
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157. It is also apt to quote from CROSS & JONES on Introduction to Criminal Law32 which is as follows:-
The chief obstacle to the acceptance of the concept of the criminal liability of a corporation has been the combination of its artificiality with the traditional need for the proof of mens rea in crime. The Courts had little difficulty in holding that a corporation can be guilty of breach of a statutory duty, such as the duty imposed on the occupier' of a factory to fence its machinery or on the 'keeper' of a dog to license it. Since the middle of the nineteenth century it has been clear that, like anyone else, a corporation is liable if it is in breach of a statutory duty imposed on it as an occupier or keeper or in some other similar capacity.
158. Nothing has come on record which could show that the Hospital was vicariously liable or it can be made liable by virtue of any statute in the criminal law. Further all the deposition of the witnesses have only named accused no. 1 and 3 as to be the active and sole participant and the other staff members which were provided on behalf of the hospital, they have not been examined, nor have been cited as a witness, nor have been chargesheeted, Nor the prosecution on record have been able to prove anything which could show any gross negligence on the 32 9th Edn., pp 107-108 paras 6-35, 6-36.
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159. Even the prosecution has failed to examine the witnesses which were present at the time of such unfortunate incident. Apart from the persons who were available in the ICU, who were made accused, Prosecution has failed to examine Sh. Kuldeep, CT Technician, Ms. Sheeja (Staff nurse), Ms. Alice(Staff nurse), Anil (ward boy), Dr. Ashish Gautam who are independent witness and would have deposed with respect to what had occurred and were essential for unfolding the narrative of the prosecution. Therefore prosecution cannot prosecute Balaji Hospital in view of the aforementioned judgement as being separate legal entity it has not been arraigned as an accused in the present case and in particular the judgment of Indraprastha Medical Corp. Ltd. (supra) reveals that accused no. 2 as director of Balaji Hospital cannot be attributed any requisite mens rea of negligence or recklessness.
160. Even otherwise nothing has been proved against accused no. 2 or even under his management and control, any gross negligence could be proved on behalf of any of the staff member or the infrastructure or the safety standards which could go on to establish any vicarious liability on the part of the accused no. 2 being in the capacity of Director. Even otherwise the administrative Officer was Sh. Naresh Pratap Singh who was in charge and was in the effective management and control of the Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 222 of 345 hospital was also not made accused, wherein he is appearing to be most proximate in the line of responsibility qua mens rea. Though on facts and evidence, no gross negligence has come on record upon Hospital Administration, and even if it would have come, even by widest stretch of imagination, accused no. 2 can never be held responsible.
161. Contrary to all this, Naresh Pratap Singh was cited in the list of witnesses and his statement was duly recorded by the police officials, however he remained unreachable despite several efforts even through the DCP concerned, and was duly dropped by my Ld. Predecessor on 17.03.2020. Therefore no instance of any fault with respect to the hospital authorities to the standard of gross negligence or personally on the part of accused no. 2 to the extent of any gross negligence or any evidence have been led to make evident the fault of administrative officer have been brought on record therefore this Court is of the opinion that no vicarious liability in view of the aforesaid discussions and law stands and henceforth the opinion of the post-mortem board "vicarious liability of the Balaji Hospital in our view stands" is not substantiated and is ruled out on the facts and the evidence.
162. Therefore the opinion given, i.e negligence by the post- mortem board Ex.PW1/A do not get substantiated on the appreciation of facts, circumstances, law and the evidences and stands shattered before the Court.
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163. The case file also reveals another medical board formed pursuant to Ex.PW12/F wherein the Inspector (Vigilance) of North-West District was already aware that the view upon the negligence have already been furnished through Ex.PW1/A, but for the purpose of further investigation, it required hair-splitting view of the treatment record of the deceased to be done so that the following things could be ascertained:-
1. The omission and commission is done by the treating doctor is of such a nature that happening of the same cannot be ruled out in such operation even after following the standard procedure of such operations.
2. Can these lapses be attributed to the development of sudden complications at both pre-
and post operative stages and also if any such complication took place at all in this case.
3. The quantum of error/negligence in medical terms on the part of treating doctors may also be specified.
4. Anything else in the opinion of your board could be helpful in this case for the purpose of investigation.
164. It is interesting to note that the material upon which negligence upon the post-mortem board dated 01.10.2004 was upon 35 paper into x-ray films, however to get the hair-splitting view, the papers were reduced to a total of 25 papers. PW-2, PW- 4 and PW-5 were the members of this board who were M.D. Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 224 of 345 (Forensic), Anaesthetist and General Surgeon respectively. The opinion that was furnished by all the three doctors and the discrepancies that they observe is being reproduced here as under:-
1. On annexed paper no.6, the death summary signed by Dr. Anil Handa of Shree Balaji Hospital of dated 30.09.04 mentioned that the Komal Khatri was declared dead at 11.35 AM on 30.09.04 but on page no.20 over its back sheet it has been mentioned "Patient conscious, respiration normal, no bleeding, to be transferred A similar they are to Semi-
Private Ward at 12.30 PM on the same date". These are contradictory findings recorded on their treatment papers. In case the patient had died at 11.35 AM on 30.09.04; how he could be conscious and normal and fit for shifting in the ward in the same date is a contradictory and amazing fact.
2. On page 8, it is mentioned at point 2 that no CT Scan or angiography was performed. This showed that no efforts were made to confirm the differential diagnosis between adenoid and hyper vascular pathology like angiofibroma.
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3. On page 7, it has been mentioned that this was the diagnosed case of adenoidal hypertrophy by Apollo Hospital doctors.
What efforts were made to distinguish the differential diagnosis by Shree Balaji Hospital doctor it is pointing towards the act of omission.
4. On perusal of page 19 the reversal of patient from anaesthesia has not been mentioned elaborately about gag reflex and cough reflex and bleeding from the post-pharyngeal wall which should have been checked periodically. The continuous monitoring of the patient at the bedside is required in order to check and prevent the backflow of the blood from the naso pharynx to the trachea.
5. On page 20 at 8.30 AM, it is mentioned that patient was sleeping pulse 72/mt., BP 110/70, but there is no mention of active bleeding from the operated area. The postmortem findings as mentioned on page 3 & 4 are not supporting their view expressed on page 20.
6. The entire anaesthesia procedure and its reversal till 8.30 AM on 30.09.04 does not mention any evidence of active bleeding from the operation site which is Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 226 of 345 contradiction according to postmortem findings. This is the joint responsibility of act of omission & commission by surgeon & Anaesthetist and the vicarious liability of the management of Shri Balaji Hospital, Delhi.
165. No less interesting is the step leading to the formation of this medical board dated 14.10.2004 and the intervening circumstances from 01.10.2004 to 14.10.2004. Medical board is alleged to have been formed in view to form opinion upon the negligence of the accused herein on 01.10.2004, however it has come in the testimony of PW-11 IO Shriram that he received post-mortem report of the deceased i.e Ex.PW1/A on 06.10.2004 and subsequent thereto an FIR was lodged in this case. The gap remains unexplained as to when the post-mortem report was prepared on 01.10.2004, why had the occasion arisen in wherein it was handed over on 06.10.2004. Further though the questionnaire on behalf of PW - 2 regarding any subsequent test taken on the part of the accused herein were put on 04.10.2004, however there is unexplained delay of at least two days.
166. PW 16 complainant Karambir Khatri had made a fresh complaints after the FIR was lodged to the Joint Commissioner of Police on 11.10.2004 which was exhibited as Ex.PW16/D2 against the accused seeking the transfer of the case from the Police Station Mongolpuri for proper and fair investigation. It Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 227 of 345 was alleged on the part of the complainant that the accused person has advised him for the operation of fake disease, wherein his child was not suffering and that all these exercises have been undertaken on the part of accused only to extort and mint money. It is interesting to note that the complaint was moved to the Joint Commissioner on 11.10.2004 vide diary number 15700 and on the same day the signature of the Joint Commissioner has been impressed.
167. It was argued on the part of accused no. 1 that the alleged complaint Ex.PW16/D2 was moved vide diary no. 15700 dated 11/10/04 before the office of Joint Commissioner of Police and GD North West Distt got this complaint vide diary no. 21711 on 12/10/2004. The Joint Commissioner of Police examined the alleged complaint on 14/10/2004 vide no. 5364 and himself wrote the order in his own handwriting on the complaint itself(bottom). The said order is signed by him at the bottom. In his written orders, without finding the truth of alleged complaint and without enquiry, the Joint Commissioner ordered which is being reproduced here:-
"Why the delay & lapse on the part of local police. The case be transferred for investigation to vigilance of N/W district. Insp. Vig. N. Gulati to investigate. The slackness on part of police of Mangol Puri also should be enquired & action taken against guilty officials. Report progress in Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 228 of 345 investigation in 3 days signed by Joint Commissioner
168. It was further argued on behalf of accused no. 1 that the alleged complaint was marked to DCP/NW, and left hand top corner of complaint shows stamp of diary section of office of ACP/PG/ NW distt vide Dairy no. C812 dated 15/10/04 and ACP ordered on this complainant PW-16/D2 only by making a noting as Insp. Vigilance to enquiry Please report SD ACP/PG/15/10
169. Now from the above said facts, as argued by accused no. 1 , it is clear that Joint Commissioner had ordered for transfer of case to Insp. Gulati(Vig.) on 14/10/04 and said orders was received by him on 15/10/04 through ACP Vigilance. The purpose of getting the case transferred to Vigilance, Ashok Vihar was to create a ground for the cancellation of Anticipatory bail of accused no.1 Dr. Anil Handa. The said application was filed on 23/10/04, application no. 1993/2004 and the same was dismissed as withdrawn by the complainant on 04/10/2005. This contention is further proved by the statement of S.I. Chandra Shekhar, whose statement U/s-161 was recorded by I.O. INS. N. Gulati on 14/10/2004 wherein he states...... Today, I went with you to Tis Hazari Court where discussion took place with Senior P.P. Shri. Tawar regarding filing of revision application against anticipatory bail granted by Session court... in the High Court. Inspector Vigilance I.O. Gulati moved an application to Chairman Medical Board on 13/10/04 vide EX. PW-12/F. While Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 229 of 345 there was no medical board formed by any authority as on 13/10/04. The earlier board was post mortem board and it was formed by Govt. of NCT Delhi for the purpose of autopsy of deceased. Request was made for examination of treatment papers of deceased. A set of 25 papers were submitted and these were part of 35 papers and 2 X-rays already examined by post mortem board and on the basis of which adverse opinion was already given by them. Detailed questions were asked by I.O. Gulati PW- 12 which was beyond his scope of work. The motive behind was not only to get the stamp of approval of post mortem findings and opinions but also to create fresh sensational grounds for filing application for cancellation of bail of accused Dr. Anil Handa.
170. It was further put forward by accused no. 1 that I.O. Gulati proceeded with request to Dr. K.L. Sharma with 25 papers on 13/10/04 (Ex.PW-12/F) while the Joint Commissioner of Police had transferred the case to Inspector Vigilance, on 14/10/04 and IO Gulati received instructions on the same on 15/10/04 through ACP VIG. vide Ex.PW-16/D2.
171. Certain questions were put forward by accused no. 1 as :-
Firstly, how and why, he proceeded to Dr. K.L. Sharma with his application on 13/10/04 while the case was still with Mangol Puri Police Station, and the instructions to investigate the present case was Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 230 of 345 assigned to Insp. Gulati vide Ex.PW-16/D2 on 15/10/2004.
Secondly, who authorized him and how he got case file and other documents without any orders of transfer of case?
Thirdly, why was he indulging in this illegal activity. He not only met Dr. K.L. Sharma but also Senior P.P. Tanwar regarding cancellation of bail of accused Dr. Anil Handa?
172. It was further argued on behalf of the accused no. 1 that this clearly proves the malafide contentions of police. Police went all out to help complainant and were hand and gloves with them. All records and reports are fabricated and manufactured with their ulterior motive. Medical board report was delivered to I.O. Gulati on 14/10/04 while the case was yet to be transferred to I.O. Gulati. As such both PM report and medical boards reports are fabricated and illegal and cannot be relied upon.
173. This above contention is not sustainable and it stems from the fact that accused no. 1 has failed to look at the date mentioned below the signatures of Joint Commissioner. On the original of Ex.PW16/D2, it is apparent that date that it was signed was on 11.10.2004, henceforth Insp. N. Gulati was effectively IO in this case by virtue of order of Joint Commissioner concerned on 11.10.2004 itself and henceforth everything thereafter is logical sequence and cannot be said to be Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 231 of 345 malafide conduct on the part of the police officials. In Administrative wing, any order signed by the concerned official becomes effective as and when it is signed. Though it may take time to be transferred or to be communicated but since it was signed by the Joint Commissioner on 11.10.2004, it becomes effective and same certainly would have been communicated to Insp. Gulati from the Office of Joint Commissioner. No malafide in such scenario can be imputed. The photocopy that has been placed by the accused no. 1 of Ex.PW16/D2 misses the date at the bottom where the signature of the Joint Commissioner has been impressed.
174. However one of the material step that has tainted the aforesaid Medical Board opinion dated 14/10/2010 is the failure of Principle of Natural Justice as well as the Principle of Impartiality. There is glaring bias.
175. Bias has been defined as "an operator prejudice, whether conscious or unconscious"33. Procedural fairness demands not only that those whose interest may be affected by an act or a decision should be given prior notice and an adequate opportunity to be heard, but also requires that the decision- makers should not be biased or prejudiced in a way that precludes fair and genuine consideration being given to the arguments advanced by the parties. Though perfect objectivity is an utopia but rules against bias aims at preventing hearing from 33 R v. Queen's County Justices [1908] 1 I.R. 285 at 294 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 232 of 345 being a sham ritual or mere exercise is to be only symbolic reassurances. It is always to be kept in mind that man in the position of command and who can forth with the opinion does not ceases to be human and strips himself of all predilections and becomes a passionless thinking machine. The principle expressed in the maxim nemo judex in sua causa [no one should be addressed in his own cause) refers not only to the fact that no one shall adjudicate his own case but also refers to the fact that no one shall adjudicate a matter in which he has conflicting interest. In order to give effect to those two aspects of the principle, the concern is not only to prevent the distorting influence of actual bias, but also to protect the integrity of the decision-making process by ensuring that, however disinterested the decision maker is in fact, the circumstances should not give rise to the appearance of bias. If a person's influence in a decision by his private interests or a personal predilections, he will not follow, or may be tempted not to follow, they required standard and consideration which ought to guide the decision. An accurate decision is more likely to be achieved by a decision maker who is in fact impartial or disinterested in the outcome of the decision and who puts aside skinny personal prejudices.34
176. The existence of bias depends entirely on the context and there have been various variety of biases which includes pecuniary, personal, official and bias on the account of judicial obstinacy. In the present case, though it is not the case of judicial 34 De Smith's Judicial Review, Seventh Edition, Sweet and Maxwell, 10-038, Pp-534-551 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 233 of 345 decision however the fact of obstinacy has to be taken into account which have been well reflected.35
177. de Smith in his Constitutional and Administrative Laws36 states:
How should the test of disqualification for likelihood of bias formulated?...A more common formulation of the test is: Would a member of the public, looking at the situation as a whole, reasonably suspect that a member of the adjudicating body would be biased? Another common formulation is: Is there in fact a real likelihood of bias? There is no need, on either formulation, to prove actual bias; indeed the Courts may refuse to entertain submissions designed to establish the actual bias of a member of an independent tribunal, on the ground that such an inquiry would be unseemly. In practice the test of 'reasonable suspicion and real likelihood of bias will generally lead to the same result. Seldom indeed will one find a situation in which reasonable persons adequately apprised of the facts will reasonably suspect bias but a Court reviewing the facts will hold that there was no real likelihood of bias. Neither formulation, is 35 ibid.
36 de Smith: Judicial Review of Administrative Action, (5th Edn.) pp. 526-27; Wade:
Administrative Law, (9th Edn.). pp 464-67; Garner: Administrative Law, (8th Edn.), pp. 243- MP Jain: Treatise on Administrative Law, (1996), Vol. 1, PP. 407-22 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 234 of 345 concerned wholly with appearances or wholly with objective reality. In ninety-nine cases out of a hundred it is enough for the Court to ask itself whether a reasonable person viewing the facts would think that there was a substantial possibility of bias."
178. Normally a decision will be invalid for bias if the decision maker takes part in a determination appeal against one of his own decisions, or one in which he has participated. At best he is likely to incline towards affirming his earlier decision; at worst they can be depicted as a judge in his own cause. In general a decision maker must not participate or it did give the impression of participation in such an appeal.37
179. More pertinent is the decision of in State of W.B. v. Shivananda Pathak38, a writ of mandamus was sought by the petitioner directing the governmental authorities to promote him to the next higher post. The Single Judge of the High Court allowed the petition directing the authorities to issue order of promotion 'forthwith'. In appeal, the order passed by the Single Judge was set aside by the Division Bench. A direction was, however, issued to consider the case on merits. The case was accordingly considered and directions were complied with by the Government. After two years, again a fresh petition was 37 De Smith's Judicial Review, Seventh Edition, Sweet and Maxwell, 10-038, Pp-551,552 38 (1998) 5 SCC 513: AIR 1998 SC 2050. See V.D.Ramachandran's Law of Writs, Sixth Edition, P. 295 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 235 of 345 instituted praying for payment of salary and other benefits in terms of judgment of the Single Judge in previous petition (which was reversed in appeal). The petition was dismissed by the Single Judge. That order was challenged in appeal which was heard by a Division Bench which comprised of the Judge who had allowed the previous petition (as a Single Judge which order was set aside). Certain reliefs were granted. The State approached the Supreme Court.
180. Allowing the appeal and setting aside the decision of the Division Bench, the Court said:
"Bias has many forms. It may be pecuniary bias, personal bias, bias as to subject-matter in dispute, or policy bias, etc. In the instant case, we are not concerned with any of these forms of bias. We have to deal, as we shall presently see, a new form of bias, namely, bias on account of judicial obstinancy,"39 (emphasis supplied)
181. It proceeded to state: "If a judgment is overruled by the higher Court, the judicial discipline requires that the Judge whose judgment is overruled must submit to that judgment. He cannot, in the same proceedings or in collateral proceedings between the same parties, re-write the over-ruled judgment. Even if it was a decision on a pure question of law which came to be over- ruled, it cannot be reiterated in the same proceedings at the 39 Id., at p. 524 (SCC): 2057 (AIR).
Case No. 528685/2016FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 236 of 345 subsequent stage by reason of the fact that the judgment of the Higher Court which has overruled that judgment, not binds the parties to the proceedings but also the Judge who had earlier rendered that decision. That Judge may have his occasion to reiterate his dogmatic views on a particular question of common law or constitutional law in some other case but not in the same case. If it is done, it would be exhibitive of his bias in his own favour to satisfy his egoistic judicial obstinacy."40 (emphasis supplied)
182. It has also been observed in Lyon's Medical Jurisprudence and Toxicology41 wherein it has been observed and being reproduced here:-
"Subsequent opinion: In certain cases, further investigations might demand a re-examination of opinions, or advanced elucidation of information, or final conclusion in the light of the chemical examination report, or opinion regarding the co-relation of injuries noted in a report with a weapon that is subsequently recovered. In such cases, a subsequent opinion might be sought by the investigating officer (IO) of a case. It is advisable that subsequent opinion should be given after a discussion with more experienced experts, as they might be able to 40 Id., at pp. 524-25 (SCC): 2058 (AIR). 41 11th Edition, Delhi Law House, P. 783 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 237 of 345 elucidate findings in a better light in view of their greater experience.
In case of a dispute regarding the opinion expressed, the IO might seek a subsequent opinion from an independent authority regarding a case. Such opinion should always be given objectively. It is preferable to constitute a board of experts or doctors to offer opinion on such cases."
183. As per Ex. PW12/F, with view to further investigate the case, the opinion was sought by IO Inspector Gulati. It is pertinent to mention herein that Ex.PW12/F was addressed to the Chairman, Medical board of the Mortuary, Subji Mandi. It is also pertinent to navigate the testimony of PW-2 who deposed to question "Is there any medical board at Sabji Mandi Mortuary?"
to which he replied that there is no any medical board at any of the mortuary in Delhi, the boards are constituted as and when required. He denied that medical board was not constituted for the purpose of expert opinion at his request. He was confronted with Ex.PW2/A, the medical board report dated 14.10.2004 signed by him referring to the order of Medical Superintendent, Aruna Asaf Ali Hospital, constituting a panel of board of doctors vide order dated 13.10.2004. He was questioned "Can you produce the document by which medical board was constituted on that date? to which he replied that the said letter was with the IO. Witness was shown the letter, written to the Chairman of Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 238 of 345 Medical Board, Mortuary of Sabji Mandi, Delhi by the IO, which was running in 2 pages and witness stated that the said letter, is Ex.PW2/B in his own handwriting bearing his signature at point B in response to letter address to the Chairman of Medical Board. He denied that he himself has nominated as the member of Medical Board constituted for the purpose of expert opinion. He denied that Aruna Asaf Ali Hospital had not constituted any medical board. He denied no board was constituted in persuasion of order dated 13.10.2004. He denied that Dr. M. Lal (surgeon), Dr. L.M. Sharma (anaesthetist) was asked to assist him by the Aruna Asaf Ali Hospital, MS. Witness was questioned 'Can he identity signature on EX.PW2/B at point C?' to which he replied that he cannot identify the signature at point C due to lapse of time. Witness was questioned 'Whether board vide order dated 01.10.2004 was only constituted for the purpose of PM of deceased Komal Khatri or for medical opinion?' to which he replied that under that order the Medical Board was constituted to conduct the autopsy of deceased Komal Khatri. Witness was questioned "I put it to you that the scope of the board was to conduct only autopsy and find out the cause of death and not any medical opinion?' to which he replied that in pursuance of Actus Novus Interveniens, it is not only to catalogue the injuries and give the cause of death but it has got a wider scope for autopsy surgeons to interpret mode/manner of death, time since death, if any weapon used or any procedure done, whether done by single man or it involves more than one man, that is the scope of autopsy. Witness was questioned 'Can you refer any text book, which shows the scope of autopsy as suggested by you above Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 239 of 345 said?' though question was disallowed as irrelevant. Witness was questioned that it is suggested that it is not a scope of the autopsy to offer the review report on the treatment papers to which he replied it is definitely the scope of autopsy to peruse the treatment record for giving review opinion. Witness was questioned 'In your medical board report Ex.PW2/A dated 14.10.2004 you had stated to had peruse 25 photocopies of treatment records, and will you please specify the list of those papers?' to which he replied the original complete treatment records of deceased was produced by the IO before the board and thereafter members of the board gave opinion on the basis of treatment record and the same were returned to IO and they did not keep the photocopies of the same. The letter dated 13.10.2004 by Medical Suptt. Aruna Asaf Ali Govt. hospital, Delhi constituted the medical board was sent directly to the IO. He admitted that he have not annexed any document to his report. And volunteered that as all the documents were returned to the police officials in original.
184. It is not clear as to when for further investigation the opinion was sought by Inspector Gulati vide Ex.PW12/F then how and by what order PW2 was nominated and how he gets to nominate himself. Though Inspector Gulati has addressed vide Ex.PW12/F but PW2 is not the person who holds such post and it is apparent that he has auto-nominated himself. This is outrageously against the Principle of Natural Justice and Judicial tenet as enunciated with respect to biasness.
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185. Interestingly PW2 has declared himself as Chairman this time and vide Ex.PW2/B submitted to Medical Superintendent to appoint Surgeon and anaesthetist and later on Medical Superintendent assigned PW-4 and PW-5 to assist PW-2. The extent of obstinacy on the part of PW-2 can be very well reflected by the way he answers to the question and Court cannot think otherwise that he is not obstinate. His testimony is being reproduced here:-
Q: Are you aware that the DMC(Delhi Medical Council) had held an inquiry into the death of Komal Khatri by the treating doctors and they had held that no medical negligence could be attributed?
Ans: The PM examination is a fact finding inquiry. The persons whether DMC (Delhi Medical Council) or any the other institutions who had not seen the dead body is not eligible to comment over the findings of PM examination.
186. This self-appointed Chairman PW-2 (who was himself working with Aruna Asaf Ali Hospital) who does not have specialization in ENT, never carried out any adenoid surgery ever, deposed that ENT Surgeon was not available at the time of formation of Medical Board (which is not true and this positive statement on the part of negative existence of ENT Surgeon proves malafide on his part and the factum that Aruna Asaf Ali Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 241 of 345 Hospital had ENT Surgeon posted in the year 2004 is well proved by Ex.DW7/DD which was duly proved before the Court), does not remember that whether he has called for CT Scan and Angiography, had least cared to go through biopsy report, admits to the contrary that x-ray is one of the test diagnosing the hypertrophy of adenoids and have seen the x-ray of the deceased, self appointed himself for the further enquiry and comments upon the negligence of the doctors without giving them due opportunity to explain themselves and of obstinately has commented upon that even Delhi Medical Council, under which all the doctors of the Delhi are registered and are supposed to work as per the guidelines and being the regulatory and statutory body, which came into existence after our Parliament had duly passed an enactment, and claiming himself to be forensic expert had further cared least to induct ENT Surgeon for the reason best known to him or even initiated to send a request for ENT Surgeon has deposed so casually that one is not fit to comment upon the PM examination if one has not seen the dead body.
187. It is not certain how PW-2 had self appointed himself to be the chairman and PW-4 and PW-5 had not seen the dead body of the deceased, went further to comment upon the negligence. Same PW-4 and PW-5 have testified in a manner that have not supported Ex.PW2/A. One (in this case PW2) who holds the opinion that subsequent doctors who have not seen the dead body cannot comment upon the post-mortem examination, goes on to find the array of observations commenting upon the negligence is Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 242 of 345 outrageous and not devoid of malafide. This Court does not rules out the malafide on the part of PW-2 and the propensity to create Ex.PW2/A for the cancellation of anticipatory bail cannot be ruled out. Ex.PW2/A classic example of haphazardness and goings-on of PW-2 where he was bent to self appoint himself and keep all the norms and principles of natural justice at bay and biasness is well reflected. It also seems that PW2 was disposed to see and report the matter as he wished for, rather than as they were and thought himself the epitome of natural justice and kept at stake the due process.
188. The investigative agency have formed a subsequent medical board in view of observation that there was allegation of fake disease and henceforth there was dispute regarding the opinion expressed, the IO sought to seek a subsequent opinion from an independent authority regarding a case. In this case the subsequent medical board was not an improvement of highly expert doctors as PW4 was Anaesthetist, who have not supported the tale of negligence, PW-5 was General Surgeon, however was not ENT Surgeon, with no specialisation in ENT or worked in ENT Department and PW-2 already stands as not a credible witness for present case. The post-mortem report dated 01.10.2004 was based allegedly upon 35 papers and 2 x-rays films and the subsequent medical board report dated 14.10.2004 is based only upon 25 papers, and since PW-2 has already been the Chairman of the post-mortem report dated 01.10.2004 expressing negligence, his obstinacy not being ruled out, for normally a decision will be invalid for bias if the decision maker Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 243 of 345 takes part in a determination of appeal / reconsideration against one of his own decisions, or one in which he has participated. At best he is likely to incline towards affirming his earlier decision; at worst they can be depicted as a judge in his own cause. In general a decision maker must not participate or give the impression of participation in such an appeal.42 Therefore propensity of PW-2 to affirm his earlier opinion and his statement that one who has not seen the dead body is not suitable to comment upon PM Examination, is proved, as PW-4 and PW-5 in their deposition, though being the coveted member of medical board dated 14.10.2004 have not supported the view that has been espoused by PW2. Even otherwise, the issue of mentioning of 12:30 PM in the operation theatre notes, the issue of wrong diagnosis and additional test involving CT scan and Angiography and the case of differential diagnosis, the fact that the anaesthetics have not mentioned elaborately about Gag and Cough reflex (Though the statement herein mentioned itself admits that there were such reflexes but were not written elaborately and mere not mentioning elaborately the anaesthetist notes is no gross-negligence) and the fact of active bleeding, which must have taken place as it was found in post mortem report and therefore not consistent, is only an hypothesis and unholy imagination not substantiated by any facts or circumstances that have been brought on record and have been shattered piece by piece. They have not withstood the rigours of truth. The aforesaid aspect has been dealt in detail elsewhere above and are not being reproduced. It is also important to 42 De Smith's Judicial Review, Seventh Edition, Sweet and Maxwell, 10-038, Pp-551,552 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 244 of 345 mention herein that as far as the issue of active bleeding is concerned, this Court does not rule out the postmortem artefact43 effect as the body was preserved for at least a day in Mortuary and mishandling of the body cannot be ruled out. It was even mentioned in post-mortem report dated 1.10.2004 that hour of death to be 32 hours before.
189. Post-mortem artefacts are due to any change cost, or features introduced in a body after death. The artefacts are physiologically unrelated to the natural state of the body or tissues or the disease process, to which body was subjected to before the death. The artefacts that mimic traumatic lesions may lead to suspicion of violent death and hence may give rise to request for inquest. Ignorance and Misinterpretation of such post- mortem artefacts leads to wrong cause of death, wrong manner of death, undue suspicion of criminal offence, Halt in the investigation of criminal death, unnecessary spending of time and effort as a result of misleading findings or even miscarriage of justice. Post-mortem artefacts are classified under various headings and the important ones which are important for the present case are artefacts due to storage prior to examination, handling of dead body, artefacts due to delay in post-mortem examination.44 43 Modi, A Textbook of Medical Jurisprudence and Toxicology, 26 th edition by Justice K Kannan, LexisNexis, page 375-380).
44 Ibid.
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190. Modi's Book further goes on to outline Autopsy surgeon induced artefacts as:-
(v) Autopsy-surgeon-induced Artefacts45
(a) During the opening of the skull by forceful sawing or by using a chisel and a hammer, an existing fracture of the skull may become extensive or fresh fractures may be caused. ...
(c) When neck structures are pulled forcefully or otherwise, air may enter the neck vessels or there may be seepage of blood around neck structures or there may be fracture of the hyoid bone, particularly in old persons, leading to erroneous traumatic neck pathology. As a rule, the neck should be cut open and dissected last.
.....
191. In Lyon's Medical Jurisprudence and Toxicology46, artefact is defined as any change caused or a feature introduced into a body after death, that is likely to lead to misinterpretation of medico-legally significant ante-mortem findings, is considered to be an artefact. Artefact is something which is not a fact but misinterpreted as a fact. It may lead to wrong conclusions about cause/manner of death or may result into non-detection or undue suspicion of crime and unnecessary spending of time/effort because of misleading findings. Lyon classifies artefacts into two broad categories which includes those introduced during period 45 Ibid, P 378 46 11th Edition, Delhi Law House, Pp 804-809 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 246 of 345 between that an autopsy and those during autopsy. One that is relevant for this case are:-
Artefacts due to handling of the body47:
Transportation, handling of the body and storage may lead to external and internal marks in the post-mortem period. During removal of a body from the scene of death, abrasions and lacerations may be found on those parts of the body that are in direct contact with the surroundings. Subluxation of the cervical spine at the level of the sixth and seventh cervical vertebrae may result if the body is accidentally dropped on the back of head. It is also called "undertaker's fracture". Absence of significant haemorrhage helps to identify the fracture as post- mortem in origin. Another injury of medico-legal significance is bruising of occipital region resulting from careless bumping of the head on a stretcher.
Artefacts related to rigor and postmortem lividity48: Exposure to cold temperature in open environment or being kept in mortuary refrigerator may cause pink hypostasis in bodies. That may resemble the colour of hypostasis due to carbon monoxide poisoning. Localised areas of hypostasis may at times
47 Ibid, Page 805 48 Ibid.
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One of the commonest artefacts related to rigor mortis is breaking of rigor mortis during handling of the body, which can mislead the medical officer in estimating time since death. The onset and progress of rigor ma be altered by atmospheric conditions like heat and cold and ante mortem conditions like hyperthermia, infection wasting diseases and muscular state. Rigor affecting the heart may simulate concentric hypertrophy of the heart.
Miscellaneous artefacts49: Extravasation of blood in tissues and body cavities does not necessarily mean that the haemorrhage was from ante mortem trauma. Under normal circumstances blood in the body remains in a fluid state and during this time a post mortem injury may open a blood vessel and lead to post mortem bleeding.
Artefacts Introduced At Autopsy50:
Extravasation of blood may occur in soft tissues, especially cervical tissue, during post-mortem examination/handling. This may simulate ante mortem bruises seen in cases of throttling and 49 Ibid, Page 808 50 Ibid.
Case No. 528685/2016FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 248 of 345 strangulation. Careful dissection of neck should be done after removing the heart and brain so as to avoid seepage of blood from the neck vessels.
Importance of identifying an artefact:
The misinterpretation of artefacts may lead to:
1. Wrong cause of death in the opinion.
2.Wrong manner of death being identified.
3. Undue suspicion of criminal offence even in cases of natural death.
4. A break in investigations of a homicide or non-detection of a murder.
5. Wastage of time.
6. Miscarriage of justice.51
192. Ld. Counsel for the accused no. 2 and 3, Sh. Jeevan Prakash has especially emphasized artefact effect and have argued that the finding of presence of blood is due to an artefact effect i.e. change introduced in the body after the death and before the autopsy.
193. Ld. Counsel had submitted that PW-1 i.e. Dr K. Goel in his deposition dated 21-01-2017 has deposed that "..it is factually correct and on record that a small tag of tissue was found oozing blood during post mortem even after 32 hours of the death as per PM Report Ex.PW-1/A at point A." That be so, the flow of continuous bleeding from one of the tissue at operating site even
51 Ibid, Page 809.
Case No. 528685/2016FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 249 of 345 after 32 hours of death, so noted at the time of post mortem, will find its ways into the airways or the wind pipe of human body and also flow out on the face and clothes, through nose in present case, that in the examination of the neck, the liquid blood and its clots have been shown up to trachea and its division (i.e. only upper part of the lungs). Had the airway be blocked with even with a single ante mortem drop of blood, it would have reached much below the divisions of trachea and up to Alveoli (bottom most part of the lungs due to respiration force). This shows that prior to death, blood did not enter the airway. The bleeding found in trachea and its division (i.e. only middle part of the airways / windpipe) is therefore, is said to have been occurred after the death as the wound at the point of surgery was found to be bleeding even after 32 hours of the death as per report of the post mortem. This is known as artefact i.e. changes introduced in the body after death but before the autopsy, that so many reasons may be responsible for such changes in the condition of body at the time of autopsy and at the time of death. On rough handling of the dead body having surgical wound without stiches in transporting from hospital to the mortuary and further in the mortuary. Any jerk to the wound is bound to bleed. No efforts have been made by post mortem to ascertain and comment as to whether the tissue which was found oozing blood was post mortem or ante mortem. In present surgery, stitches were not possible. Bleedings are controlled and stopped by other techniques as explained by the surgeon, that other possible reason is that Petechial haemorrhages may be seen under the serious membranes of various organs due to rupture of the capillaries Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 250 of 345 caused by increased pressure in them. In the present case, during the resuscitation, laryngoscopy and intubation was done which may increase the venous pressure tremendously. Therefore, the finding of petechial haemorrhages not specific to asphyxia.
194. Ld. Counsel for accused no.1, Sh. Sunil Ahuja had further argued that though cause of death as revealed by Post Mortem Examination dated 01.10.2004 is Asphyxia consequent to choking of the wind pipe by blood and blood clots, aspirated as a result of bleeding from the raw area of naso- pharynx done by surgical intervention however Counsel for the accused no. 1 submits that there is no finding of the heart which would be consistent with the death from the Asphyxia in post-mortem report Ex.PW1/A.
195. Ld. Counsel for the accused no. 1 have relied on Modi's Jurisprudence52 and in particular paragraphs which is being reproduced here which is pertinent in cases of Asphyxial death:-
(ii) Internal Appearance.- Rags, mud or any other foreign matter may be found in the mouth, throat, larynx or trachea, when suffocation has been caused by the impaction of a foreign substance in the air-passages. It may also be found in the pharynx or the oesophagus. The mucous membrane of the trachea is usually bright red, 52 Modi, A Textbook of Medical Jurisprudence and Toxicology, 26 th edition by Justice K Kannan, LexisNexis, page 536.Case No. 528685/2016
FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 251 of 345 covered with bloody froth and congested. The lungs are congested and emphysematous. They may be lacerated or contused even without any fracture of the rib, if death has been caused by pressure on the chest. Punctiform subpleural ecchymoses (Tardieu spots) are usually present at the root, base, and the lower margins of the lungs, but they are not characteristic of death by suffocation, as they may also be present in asphyxial death from other causes. They are also found on the thymus, pericardium, and along the roots of the coronary vessels. The lungs may be found quite normal, if death has occurred rapidly. The right side of the heart is often full of dark fluid blood, and the left empty. The blood does not readily coagulate; hence, wounds caused after death may bleed. The brain is generally congested, and so are the abdominal organs, especially the liver, spleen and kidneys.
196. In Lyon's Medical Jurisprudence and Toxicology53, reveals about Asphyxia as:-
General Post Mortem Appearances In Cases Of Asphyxia 53 11th Edition, Delhi Law House, Pp 956-958 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 252 of 345 The appearances described below are generally well marked in cases where asphyxia is mainly or completely responsible for death.
Interpretation of post mortem appearances in cases of death from hypoxia: It must be borne in mind that there are no constant post mortem changes produced by the direct effect of hypoxia. Features that are visible as a result of respiratory obstruction are the result of local effects of the obstructing or constricting agent, or of increased intravascular pressure and of terminal heart failure.
Cyanosis-Cyanosis should be examined and evaluated very carefully. Should the body be examined very soon after death, within a few hours at most, cyanosis might have some significance. Thereafter it might be due to post mortem changes. On the other hand, absence of cyanosis at a delayed post mortem examination does not mean that it was not there at the time of death. In cold climates the classical cyanosis might turn pink. The usual post mortem appearance of cyanosis might be due to collection of blood in superficial blood vessels.
Congestion- Systemic and pulmonary congestion along with dilatation of the right side of the heart are generally described as classical features of asphyxia. These should be Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 253 of 345 treated with even greater caution than cyanosis. The features seen might easily occur as a result of changes in the distribution of blood that takes place, both internally as well as superficially (visible as post mortem lividity). Dilatation of the right ventricle and pulmonary congestion might occur as a result of a number of causes that have nothing to do with asphyxia. At the same time capillovenous congestion above the ligature mark in the neck might be of value in estimating the time and force of pressure inflicted upon the neck.
Fluidity of blood-Fluidity of blood was at one time ascribed to asphyxia. It is more likely the result of the presence of fibrinolytic enzymes in blood. The fluidity of blood might be related to the rapidity of death, rather than the cause. Pulmonary oedema- While some amount of pulmonary oedema might occur in cases of asphyxia, it might just as well occur in a number of other conditions that cause death.
Petechial haemorrhages-The presence of small capillary haemorrhages presenting as peticheal spots has long been associated with asphyxia. This rupture could occur as a result of either raised intra capillary pressure due to haemodynamic or might result from capillary wall damage due to hypoxia, leading to release of Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 254 of 345 blood from these vessels. They might be absent in cases of death from obstruction of the air passages without compression of the neck, in carbon monoxide poisoning. They are present where there has been severe compression of neck veins along with a struggle to breathe. They may also be present in cases of obstructive hypoxia. In cases of petichea over the face, they should be above the point of compression of the neck to be significant. When below, they might result from traumatic asphyxia. Similarly, the presence of petichea within the chest might result from increased pressure in the vessels due to a variety of causes. In peticheal spots in the conjunctive, apart from compression as in strangulation, they might result from a dependent position of the head relative to the body.
Positional changes after death might increase the size of petichae. Another difficult area is the scalp. Petichae under the If scalp might result from rupture of small capillaries present in the loose tissue here and these should also be looked for and properly analysed.
Pharyngeal haemorrhage-Large submucosal haemorrhages behind the cricoid cartilage are often ascribed to pressure being applied upon the neck. However, most haemorrhages in this area might be the result of congestion in the vessels Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 255 of 345 leading to rupture. This might occur in several conditions of raised pressure that are unrelated to Asphyxia
197. Another Textbook54 reveals internal autopsy finding qua Asphyxial death as:-
Internally, blood is dark in colour due to diminution of oxygen tension and an increase in reduced haemoglobin. It is more fluid and coagulates slowly on account of increased fibrinolysin activity. Engorgement of the right side of the heart is a non-specific finding, common in all types of congestive deaths, and is useless as a diagnostic sign of an asphyxial process. The large veins are full of blood. The lungs are engorged and deeply congested, Pulmonary oedema may be present. On cut section, the lungs exude copious frothy fluid, often blood-stained. The bronchi and trachea also contain blood-stained froth and their mucosa is congested. Numerous subserous petechiae may be found on the surface of the lungs and heart. The abdominal viscera are congested and so also the brain and meninges, and petechial haemorrhages may be found in the brain. The cranial sinuses are usually filled with dark blood. Terminal vomiting, 54 Parikh's Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology, Eight Edition, CBS Publishers & Distributors Pvt. Ltd, Page 178-179 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 256 of 345 due to medullary hypoxia, is common. As a result, the air passages may be filled at the end of asphyxial event by inhaled vomit, the subject being already unconscious. It is important, especially in infants, that this finding is not automatically assumed to be the cause of asphyxia; it is more likely to be the consequence. Doctors not familiar with medico-legal matters often find the presence of stomach contents in upper airways at autopsy a very confusing observation. It may be due to:
1. Inhaled vomit as a terminal event in asphyxial deaths.
2. Movement of the body after death when it is in a relaxed state, thereby mechanically redistributing fluids and the gastric contents.
3. Disorganised and uncoordinated muscle movements during terminal moments of life which often result in regurgitation of stomach contents.
4. Intoxication and unconsciousness as a result of alcohol / drugs.
5. An after-effect of head injury. Vomit inhalation is, therefore, usually an incidental finding or a final common event in such cases and more often than not does not constitute the cause of death which is properly defined as the injury, illness, or combination of the two, however, brief Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 257 of 345 or prolonged, which initiates a series of events ending in death. The only sure way to diagnose inhalation or aspiration of gastric contents is by copious lung histology when products of digestion are found beyond the secondary bronchioles. It must be remembered that asphyxial signs are very striking in fresh bodies only. They progressively disappear with lapse of time, and many of the signs disappear as a result of putrefaction.
198. Post mortem report Ex.PW1/A is silent about the status of heart. Further under the column against Lungs, Petechial haemorrhages are seen which are present only in the cases of compression of neck. Prosecution case is not that deceased expired of compression over death, rather Asphyxia due to aspiration of blood. Abdominal organs, especially the liver, spleen and kidneys must have been congested but are found to be intact as per the finding in Ex.PW1/A. This raises doubt over the cause of death and the conclusion reached.
199. Moreover Modi's Jurisprudence specifically observes that in cases of Asphyxia, the blood does not readily coagulate; hence, wounds caused after death may bleed, this may be the reason that blood may be oozing out from the tag of tissue from Naso-pharygly area. Moreover artefact effect cannot be ruled out.
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200. One of the finding which is most essential and have been overlooked during the whole trial by the prosecution, though pointed out by Ld. Counsel for the accused no. 1 is sub-mucus haemorrhages seen at places in stomach region. This Court does not rule out with affirmation that source of blood in the stomach as well as blood containing clot has the origin from haemorrhage in stomach. Any small haemorrhage is enough to profuse bleeding from stomach and since body was kept preserved in mortuary for at least a day, the blood could have flowed and would have found its way in trachea and other places. Probable guess that this may have occurred at the time when deceased's body was kept for preservation and would have been handled. Further shifting may also have led to such consequences. The benefit has to be given to the accused.
201. The last leg of argument led on behalf of the prosecution with respect to the anaesthetist and the drugs administered during operation, the prosecution witnesses themselves and in particular PW-6 Sh. V. Venugopal, Director-in-charge, CFSL Hyderabad, who deposed as prosecution witness on 18.07.2019 have categorically testified that the common anaesthetic compound and anaesthetic poison could not be detected in content of exhibit marked as 1,2,3,4 and the chemical examination report was duly proved by him vide Ex.PW6/A. This sufficiently prove that there was no overdose of any anaesthetic compound or any poison was found.
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202. Objection was raised on behalf of the Ld. Counsel for the complainant, Sh. Vijay Singh that it is not confirmed that PW6 has tested the viscera contents of Master Komal Khatri. However PW-15 ASI Dharambir who has testified on 03.10.2019 have deposed that on 25.12.2004, he was posted at vigilance branch and brought viscera from the Malkhana of Mangolpuri and had taken it to CFSL Hyderabad for examination and on 01.01 2005 he has received the report from CFSL Hyderabad and same was deposited with the malkhana. PW-14 SI Hari Singh had specifically testified on 03.10.2019 as he has brought register no.19, wooden box and sample seal and have specifically deposed that on 02.10.2004, wooden box and sample seal and the same was taken by Constable on 25.10.2004 and same was duly sent by PW-15 to CFSL Hyderabad and reports from a CFSL was received by ASI Satish Kumar on 19.09.2005. The Viscera Box was produced before the Court as Ex.PW10/F by IO SI Shri Ram. PW-12 IO ACP Narender Gulati had duly testified that he has sent the viscera of the deceased to CFSL Hyderabad. Nothing has been brought on record to show that any tampering has been done with the viscera or the seal of the viscera or any contrary finding has come on record with respect to at the time of sending and respective receiving of sample and seal by CFSL Hyderabad. Hence the argument of the Ld. counsel for the complainant is not sustainable in view of above witnesses.
APPRECIATION OF DEFENCE EVIDENCE Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 260 of 345
203. Further the defence that has been brought on record has much to speak as to the defence of the accused. DW1 Dr. Girish Tyagi, Secretary of Delhi Medical Council was summoned and furnished before the Court Ex.DW1/1 (OSR) which was dated 31st of August 2006 vide DMC/14/2/Comp.179/2006/24925 to 24927 wherein an order has been passed under signatures of the Secretary, wherein accused no. 1, 2 and 3 along with Ms. Sheeja Thomas and Ms. Alice Cooper(Staff Nurse) at Balaji Hospital were heard and it was observed by the Council the following which is reproduced here:-
Late Komal Khattri(referred hereinafter as the patient) was diagnosed to be suffering from Adenoid Hyperplesia (Tonsillitis) leading to frequent nasal blockage. He was investigated for his illness at Apollo Hospital as well as by Dr. Anil Handa and was operated under general anaesthesia for Adenoidectomy at Balaji Hospital by Dr.Anil Handa on 30.9.2004. Post operative recovery was spontaneous and uneventful at 7 a.m. till about 9a.m. when the condition of the patient became serious with extreme difficulty in breathing, cyanosis, low blood pressure and feeble pulse and loss of consciousness. The patient was immediately taken to ICU where aggressive resuscitation was instituted including ventilator support. However in spite of all efforts the patient succumbed to his illnesses at (11:30 a.m.) on 30- 09-04.Case No. 528685/2016
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204. The Council observes that the investigations undertaken for the diagnosis, the diagnosis made, treatment provided to the patient including preoperative, intra operative and post operative care and management, were well within the ambit of known professional practices required for such illnesses and events. The diagnosis of Adenoid Hyperplesia was corroborated by the hystopathological findings of the Tonsillar tissues removed during the surgery. As such, no medical negligence could be attributed. The Council also observes that some of the conclusions drawn in the post mortem report appear to be beyond the scope of post mortem examination and have been drawn on the basis of incomplete assessment of the facts of the matter.
Complaint stands disposed.
205. This Medical Board was not considered in the vacuum but by way of order dated 08.10.2004, wherein the Medical Superintendent Nursing Homes of Directorate of Health Service Government NCT of Delhi have written to the registrar of Delhi Medical Council to look into the complaint against Balaji Hospital for the death of Mst. Komal Khatri s/o Sh. Karamveer Khatri on 30.09.2004 wherein reference was made to the paper clipping of Times of India dated 01.10.2004 and it was directed to request to enquire into the alleged medical negligence on the Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 262 of 345 part of treating doctors and staff of the Balaji Hospital And same was duly brought before the Court through Ex.DW1/2 (OSR).
206. By way of Ex.DW1/4 (OSR), minutes of 14 June 2006 under the then secretary of Delhi Medical Council have mentioned regarding the hearing before the disciplinary committee wherein three member committe was formed with Dr. V.K. Arora (Chairman), Dr. K.K. Kapur (Member), Dr. Sunil Nangia (Expert Member) as members. It is important to mention herein that by way of Ex.DW2/B (OSR), Sh. Ganesh Prasad, Record Keeper of Delhi Medical Council have proved that Dr. V.K. Arora endowed the qualification of M.B.B.S. from Panjab University, 1967, D.C.D. from Panjab University, 1970 and M.D. from Panjab University, 1974. The qualification of Dr. K.K. Kapur was M.B.B.S. from University of Delhi, 1967 and Dr. Sunil Nangia who was expert member has done his M.B.B.S. from University of Delhi in 1990 and Masters of Surgery in Oto- Rhino-Laryngology from University of Delhi in 1995. Therefore it is apparent that E.N.T. Surgeon is one of the member of the disciplinary committee. This is in consonance with the ruling of Hon'ble Supreme Court of India in Jacob Mathew v. State of Punjab55, wherein paragraph 52 of the Judgment clearly manifest to obtain the opinion qua medical negligence from a doctor qualified in that branch of medical practice. The factum of inclusion of ENT Surgeon was missing in Ex.PW1/A and Ex.PW2/1 but has found its inclusion in the committee. It is apparent that it was observed in Ex.DW1/4 (OSR) that 'Dr Anil 55 (2005) 6 SCC 1 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 263 of 345 Handa (Accused no. 1) and Dr R.K.Gupta (Accused no. 2) were heard and as to the status of the complainant it was observed "Shri karamveer, father of the deceased did not appear, in spite of notice. Dr Anil Handa filed his written statement; the same was taken on record. The Disciplinary Committee perused the newspaper report published in Times of India dated 01-10-04, written statement of Dr Anil Handa, copy of medical records of Balaji Hospital, postmortem report and other documents on record. The Disciplinary Committee directed that Dr Vivek Mangla, Anaesthesist, the Resident Medical Officer and Staff Nurse of Balaji Hospital involved in the treatment of the deceased, be summoned through Medical Superintendent Balaji Hospital for next date of hearing."
207. Vide Ex.DW1/5 (OSR), the minutes of 25 July 2006 and the signature of then Secretary was brought before the Court wherein all the three members as aforementioned of disciplinary committee (Dr.V.K.Arora (Chairman), Dr. K.K. Kapur (Member), Dr. Sunil Nangia (Expert Member) and accused no. 1, 2 and 3 along with Ms. Sheeja Thomas and Ms. Alice Cooper (Staff Nurse) at Balaji Hospital were heard. It is also apparent herein to mention that the complainant did not appear in spite of notice.
208. Vide Ex.DW1/3 (OSR), E.N.T Surgeon and one of the member of the disciplinary committee as formed by the Delhi Medical Council have observed on the same date i.e.25.7.2006 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 264 of 345 under the signatures of Dr Sunil Nangia with following observation:-
1. The case is a clear-cut case Adenoid hypertrophy as per the history and the examination records of Dr Anil Handa and the X-
ray soft tissue neck report.
2. Surgery i.e. adenoidectomy was justified in this patient
3. Procedure was done under endoscopic guidance and post operative homeostasis was ensured with the help of nasal endoscope.
4. Patient was fully awake when he was shifted out of the operation theatre in lateral position.
5. There was no external evidence of any post- operative haemorrhage.
6. As there was no blood suctioned during endotracheal suction through the endotracheal tube in the ICU, aspiration of fresh blood or blood clots does not appear to have caused any respiratory obstruction.
209. Vide Ex. DW6/DB, it has been proved by way of RTI via Special Secretary (Medical Board), H&FW it was specifically proved that and whose encapsulated form is being outlined:-
Case No. 528685/2016FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 265 of 345 (1). Special Secretary (Medical Board). H&FW Department is authorized to form Post Mortem Board in cases of alleged medical negligence.
(2). Medical Boards are formed by this
department on the recommendation of
concerned DCP/Hon'ble Courts in cases
suspected of medical negligence at Post Mortem examination referred for further independent investigation and opinion formation.
(3). As per approval of Special Secretary (Medical Board), H&FW, a letter is issued to concerned Medical Colleges for constitution of Medical Board. Panel of doctors in Medical Board is decided by the HOD. Forensic Medicine / Dean / Principal of the concerned medical colleges is authorized to constitute a medical board for investigation of cases of medical negligence on the basis of suspicion raised by Post Mortem Board after doing Postmortem examination.
(4).Post Mortem boards are constituted by the hospitals at its own level and medical superintendent of Hospital of Govt. of NCT of Delhi is not authorized to form medical board without the permission and knowledge of Principal Secretary, Health and Family Welfare Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 266 of 345 (5) & (6) Post Mortem board is constituted by the Hospital its own level. Further, information in this regard may be obtained from concerned hospital was answered to the question on whose request Post Mortem Board is constituted and by whom it is constituted and same answer was given for what is the qualification and experience of members of Post Mortem Board.
(7). Deputy Commissioner of Police should be the minimum official status of Police Officer on whose request medical board is constituted to investigate the cases of medical negligence.
(8). Concerned medical college where medical board was constituted was answer to question where and to whom the Police Officer investigating the case of medical negligence requests for the formation of medical board for scrutiny of case file papers and other facts pertaining to case.
(9) & (10). Information may be obtained from concerned medical college where medical board was constituted as the panel of doctors is decided by them was answer to the question as to what is the qualifications and experience of Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 267 of 345 members of medical board to investigate and formulate an independent opinion for the same and Does the medical board constituted for giving the opinion on medical negligence includes the specialist of the field of specialization of the medical negligence case in question.
210. Vide Ex.DW7/DD, it was specifically proved that in the year 2004, E.N.T. Surgeon was posted in the Aruna Asaf Ali Hospital. It was also proved vide Ex.DW7/DB that Aruna Asaf Ali Hospital had department of ENT as well as ENT specialist and it was also emphasized that cases of medical negligence are being referred to Delhi Medical Council.
211. Vide Ex.DW4/B, to the query as to copies of guideline be provided to post mortem Doctors, it was duly answered as copy of DMC order no. DMC/DC/F.14/2/comp.412/2009/73553 dated 02.06.2009 issued from H&FW, Govt. of NCT of Delhi on dated 21.07.2009 (Copy enclosed). The part of Copy of DMC order no. DMC/DC/F.14/2/comp.412/2009/73553 dated 02.06.2009 is being reproduced here:-
ORDER These proceedings are an off shoot of the Delhi Medical Council Order dated 13 May, 2008 passed in Complaint No. 412-a representation from P.S. Mandir Marg, seeking medical opinion in respect of Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 268 of 345 death of late Amit Kumar (referred hereinafter as the patient), allegedly due to medical negligence on the part of Dr. Rinku Gupta, Dr. Neel kanth Modi and Dr. Manmeet of Dr. RML Hospital. The Delhi Medical Council in the aforesaid Order has observed that the opinion expressed in the post mortem report No. 1722/2605 dated 10.11.2005 regarding the life of the deceased could have been saved if proper timely medical management have been given" was inappropriate and beyond the scope of post mortem. Notices were issued to Dr. Ashok Kumar Jaiswal, Dr. Akash Jhanjee and Dr. Manoj Dhingra, who constituted the Board, which conducted the post mortem (No. 1722/2005) of late Amit Kumar. A joint written statement was filed by Dr. Ashok Kumar Jaiswal, Dr. Akash Jhanjee and Dr. Manoj Dhingra. In the written statement, it is averred that the Board gave an Elaborated "Extended Opinion" and not restricted to by merely giving routine opinion i.e. giving cause, time and manner of death. In this case restricting to routine opinion "Death due to shock, consequent to intestinal perforation" could have easily been misinterpreted by the investigating officer -Police officer-"a non medical man" as a case of "Natural complication of disease process. Hence, arose the need of giving an elaborated extended opinion, which was done purely in good faith and to give the Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 269 of 345 investigation a right direction and opening the space for further investigation. Furthermore investigating officer of the case too had sought clarification in this regard.
212. The copy dated 21.07.2009 (even same as Ex.DW2/F) wherein all the medical superintendents of government of NCT of Delhi were advised not to give definite opinion regarding medical negligence upon post mortem report and the following order is reproduced here for perusal:-
No. F.342/MB-38/2009/H&FW/ 5020-21 To The All Medical Superintendents, Govt. of NCT of Delhi, Delhi/New Delhi.
Sub:- Advised not to give definitive opinion regarding medical negligence.
Sir / Madam, I am directed to forward herewith & copy of Order No. DMC / DC / F.14 / 2 / Comp.412 / 2009 / 73553 dt. 02.06.2009 received from the Secretary, Delhi Medical Council, 368, 3d Floor, Pathology Block, M.A.M.C., New Delhi, on the above cited subject.Case No. 528685/2016
FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 270 of 345 Delhi Medical Council on the above subject has made the following observations:
1)The post mortem findings should reflect about the cause of death either from a medical or legal standpoint and be restricted to the same;
observation like "the life of the deceased could have been saved if proper timely medical management have been given", is inappropriate, as it is beyond the purview of post mortem examination.
2) If the post mortem examiner feels that the case involves any issue of medical negligence, the same should be referred to the appropriate authority, in this case the Delhi Medical Council, where a medical specialist relating to the field to which the case pertains, can examine the same in details based on his expertise and determine and matter conclusively and effectively. A post mortem examiner is competent in the field of forensic medicine and he should, therefore, refrain from giving a conclusive report about medical negligence.
All concerned may be informed to keep the said observations in view while giving findings in the post mortem reports.
Encl: As above.
Case No. 528685/2016FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 271 of 345 Yours faithfully, (D.C. DOBHAL) OFFICE SUPDT.-II (H&FW)
213. One limb of argument that has been made on behalf of the complainant is that the originals have not been placed on record and further these documents must be marked rather than exhibited. Even though the documents have been placed on record mentions the record of the proceedings, however those who were witness to such documents or with the creator of such documents have not been examined before the Court therefore such documents have not been proved.
214. On the other hand, Ld. Counsels on behalf of the accused have stated that the all the documents were brought in the original and they are due proceedings before the Delhi Medical Council and that they have been brought before the Court none other than Secretary of Delhi Medical Council and responsible officials of the Council. Further as to the objection that the document have been marked or exhibited cannot be called into question at this stage of final arguments. Further the proceeding before the Delhi Medical Council are judicial in nature.
215. After perusing through the documents, it is apparent that the originals were brought before the Court by the responsible officers and in such cases, it was only essential on the part of the Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 272 of 345 accused herein to prove the results of the proceedings as well as the reply to queries that have been put forth before the Council by way of RTI. Therefore, since the Secretary of Delhi Medical Council and other officials have brought before the Court the relevant documents, the Court will infer its presumption under Section 114 of the Evidence Act wherein the commons course of business has been followed in each particular cases.
216. Further as to the issue of Exhibit and Mark, it is pertinent to reproduce the judgement as relied by the Ld. Counsel for the accused no. 2 & 3 upon Shail Kumari v. Saraswati Devi56 and in particular:-
13. In case a document is marked exhibit without an objection from the party which is affected by that document ordinarily its admissibility cannot be questioned at a later stage of the proceedings in the suit. But in cases where such document is marked exhibit without due application of mind in violation of provisions of a Statute requiring a particular mode of proof etc., the opposite party may still show during the hearing of final arguments that the document is inadmissible in evidence and should be excluded from consideration because of statutory bar or non-compliance of statutory requirement about mode of proof or otherwise.
56 2001 SCC OnLine Del 791 : (2002) 96 DLT 131 : PLR 2002 131 Del 26 : 2002 AIHC 1973 at page 135 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 273 of 345 For instance a Will is required to be proved by examining at least one of the attesting witnesses in accordance with Section 68 of the Evidence Act. A document which is inadmissible for want of registration or proper stamp is inadmissible in evidence, unless use of it is permissible for collateral purposes or extracts of accounts book without production of books of account and proof that they were kept in ordinary course of business.
Mere putting of exhibits number on these document in the absence of their proof in accordance with law does not make them part of the evidence to be read for deciding the suit. In Sait Tarajee Khimchand v. Yelamarti Satyam, (1972) 4 SCC 562 : AIR 1971 SC 1865, the Supreme Court has laid down that mere marking of an exhibit does not dispense with the proof of the document. All those documents which are not proved in the view of the Court by judicial evidence are simply to be marked for the purpose of their identification. Ordinarily this marking is done as A, B, C, or X, Y, Z and if they are in a bunch then A1 to A5 etc. On the other hand, the documents which have been tendered in evidence and have been admitted in evidence and in view of the Court they have been proved by judicial evidence of otherwise and/or admissible in law are marked exhibit number such as Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 274 of 345 Exhibits P1, P2, if they are documents of the plaintiff and Exhibits D1, D2 if they are documents of a defendant. Sometimes they are even given exhibit mark writing the number of witness which proved it like PW 1/1 or DW 1/1 etc. The distinctive feature of the two marking is that while the marking exhibit on a document is regarded to be its admissibility in evidence and its becoming part of evidence until the Court at Subsequent stage considered it to have not been proved and legally admitted into evidence in view of some statutory bar etc., a document on which a simple marking is put does not form part of the evidence and it could only be referred for identifying that document.
217. While these document were being brought on record, no objection has been raised by Ld. APP and hence were relying upon the judgement of Narbada Devi Gupta v. Birendra Kumar Jaiswal57, wherein it was observed:-
16. Reliance is heavily placed on behalf of the appellant on the case of Ramji Dayawala & Sons (P) Ltd. [(1981) 1 SCC 80] The legal position is not in dispute that mere production and marking of a document as exhibit by the Court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible 57 (2003) 8 SCC 745 : 2003 SCC OnLine SC 1204 at page 751 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 275 of 345 evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue". The situation is, however, different where the documents are produced, they are admitted by the opposite party, signatures on them are also admitted and they are marked thereafter as exhibits by the Court.
We find no force in the argument advanced on behalf of the appellant that as the mark of exhibits has been put on the back portions of the rent receipts near the place where the admitted signatures of the plaintiff appear, the rent receipts as a whole cannot be treated to have been exhibited as admitted documents.
218. Therefore, the present case is covered by Shail Kumari (Supra), Narbada Devi Gupta (supra), since no objection has been placed by the prosecution at the time when these documents were tendered and admitted and were being proved, no such objection is sustainable at the present stage. Further these documents that have been brought before the Court are not inadmissible in any of the Sections of Evidence Act and no special mode of proof has been provided by any statute enacted by the Parliament as these document are not any special document or conveyance deed, rather RTI's and proceedings before statutory body whose judicial notice can be taken as per Section 57 of Evidence Act and henceforth these documents stands proved as per law and to their contents.
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219. Further reliance can be placed upon the Judgment of Malay Kumar Ganguly v. Dr. Sukumar Mukherjee58, passed by Hon'ble Supreme Court of India and in particular Paragraph 37 which is reproduced here:-
37. It is true that ordinarily if a party to an action does not object to a document being taken on record and the same is marked as an exhibit, he is estopped and precluded from questioning the admissibility thereof at a later stage. It is, however, trite that a document becomes inadmissible in evidence unless the author thereof is examined; the contents thereof cannot be held to have been proved unless he is examined and subjected to cross-examination in a Court of law. The document which is otherwise inadmissible cannot be taken in evidence only because no objection to the admissibility thereof was taken.
220. Ld. Counsel for the complainant, Sh Vijay Singh as assisted by Ld. Counsel Sh. Sachin Jain have argued before the Court that the exoneration by the Delhi Medical Council of accused no. 1, 2 and 3 does not have any bearing upon this Court and the action taken of the report on Times of India dated 01.10.2004 is unsustainable and have relied upon the judgement 58 (2009) 9 SCC 221 : (2009) 3 SCC (Civ) 663 : (2010) 2 SCC (Cri) 299 : 2009 SCC OnLine SC 1472 at page 250 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 277 of 345 of State NCT of Delhi v. Ajay Kumar Tyagi, (2012) 9 SCC 685 and Himanshu Singhal & Anr v. State of NCT of Delhi, Crl.M.C. 1674/2022 & Crl.M.A. 7183/2022 passed by Hon'ble High Court of Delhi. Ld. Counsel Sh. Sachin Jain has relied on State (NCT of Delhi) v. Ajay Kumar Tyagi 59and in particular paragraph19, 20 and 25 which are being reproduced here:-
19. Even at the cost of repetition, we hasten to add that none of the heads in P.S. Rajya [(1996) 9 SCC 1 : 1996 SCC (Cri) 897] is in relation to the effect of exoneration in the departmental proceedings on criminal prosecution on identical charge. The decision in P.S. Rajya [(1996) 9 SCC 1: 1996 SCC (Cri) 897], therefore, does not lay down any proposition that on exoneration of an employee in the departmental proceeding, the criminal prosecution on the identical charge or the evidence has to be quashed60.
20. It is well settled that the decision is an authority for what it actually decides and not what flows from it. The mere fact that in P.S. Rajya [(1996) 9 SCC 1: 1996 SCC (Cri) 897] , this Court quashed the prosecution when the accused was exonerated in the departmental proceeding would not mean that it was quashed on that ground. This would be evident from para
59 (2012) 9 SCC 685 60 ibid, page 693 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 278 of 345 23 of the judgment, which reads as follows: (SCC p. 9).
..........
From the reading of the aforesaid passage of the judgment it is evident that the prosecution was not terminated on the ground of exoneration in the departmental proceeding but, on its peculiar facts61.
25. We are, therefore, of the opinion that the exoneration in the departmental proceeding ipso facto would not result in the quashing of the criminal prosecution. We hasten to add, however, that if the prosecution against an accused is solely based on a finding in a proceeding and that finding is set aside by the superior authority in the hierarchy, the very foundation goes and the prosecution may be quashed. But that principle will not apply in the case of the departmental proceeding as the criminal trial and the departmental proceeding are held by two different entities. Further, they are not in the same hierarchy62.
221. Per contra, Ld. Counsel for all the accused, Sh. Jeevan Prakash and Sh. Sunil Ahuja have argued that the proceedings before the Delhi Medical Council of the accused is not 61 ibid 62 Ibid, page 696 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 279 of 345 departmental enquiry, rather it is of the nature of judicial proceeding and have traversed through various provision and in particular Section 10 of The Delhi Medical Council Act, 1997 which provides for Power and Functions of the Council as:
10. Powers, duties and functions of the Council
--Subject to such conditions as may be prescribed by or under the provisions of this Act, the powers, duties and functions of the Council shall be--
........
(c) to prescribe a code of ethics for regulating the professional conduct of practitioners;
(d) to reprimand a practitioner, or to suspend or remove his name from the register, or to take such other disciplinary action against him as may, in the opinion of the Council be necessary or expedient;
.......
(f) to receive complaints from public (including patients and their relatives) against misconduct or negligence by a medical practitioner, to proceed for inquest, take a decision and the merits of the case and to initiate disciplinary action or award compensation and similarly to take action against frivolous complaints,"
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222. Further it has been argued on behalf of accused that proceedings taken up against doctors are deemed to be judicial proceedings and have relied upon Section 21 of The Delhi Medical Council Act, 1997 which runs as:-
Section 21. Disciplinary action including removal of names from the register --
(5) In holding any inquiry under this section, the Council or the Executive Committee, as the case may be, shall have the same powers as are vested in civil Court under the Code of Civil Procedure, 1908 when trying a suit, in respect of the following matters, namely:--
(a)enforcing the attendance of any person, and examining him on oath;
(b)compelling the production of documents;
(c)issuing of commissions for the examination of witnesses ......
(6) All the inquiries under this section shall be deemed to be judicial proceedings within the meaning of Sections 193, 219 and 228 of the Indian Penal Code(45 of 1860).Case No. 528685/2016
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223. As to the power of inquiries, the Ld. Counsels for the accused has relied upon Rule 32 of The Delhi Medical Council Rules 2003 which not only provides for suo moto initiation of proceeding and therefore Delhi Medical Council is within its rights to initiate any proceedings as has been reported in Times of India dated 01.10.2004 and such rules also specifically provides for the particulars of the complaint as well as procedure to be undertaken on the receipt of such complaint, which runs as :-
INQUIRIES
32. Complaint against medical practitioner.-(1) The Council may inquire into complaint against medical practitioner either suo motu or on the basis of any complaint made to the Council in respect of misconduct or negligence of any medical praditioner for the purposes of the Act through the Disciplinary Committee. The proceedings shall be conducted by the Registrar in the presence of the Chairman, Disciplinary Committee and at least two members thereof sitting together.63 63 The complaint shall contain the following particulars:-
(a) the name, description and address of the complainant;
(b) the name, description and address of the opposite party or parties, as the case may be, as far as they can be ascertained;
(c) the facts relating to the complaint, when the cause of action arose and what are the grounds or causes of the complaint;
(d) the documents in support of the complaint if any;
(e) the relief which the complaint claims.
No complaint shall be entertained unless it is in writing and signed by the person making it. The complaint shall be verified by the complainant. The complainant shall file six copies of the complaint along with such number of copies as there are opposite parties in the complaint. All anonymous and frivolous complaints shall be rejected.
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224. Further any grievances with the decision of the Delhi Medical Council can be appealed and the complainant herein are not without any remedy. If they have any grievances with the decision of the Delhi Medical Council and the experts that have been nominated therein and even otherwise the complainant always have the right to prefer Writ before Hon'ble High Court of Delhi and Hon'ble Supreme Court of India.
225. Ld. Counsel for the accused have relied upon Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 (Published in Part III, Section 4 of the Gazette of India, dated 6th April, 2002) and in particular upon Regulation 8.8 which is being reproduced here:-
Procedure on receipt of complaint.-The Council shall on receipt of a complaint-
(a) Refer a copy of the complaint to the opposite party mentioned in the complaint directing him to give his version of the case within a period of fifteen days of receipt of copy of the complaint.
(b) Where the opposite party on receipt of a complaint referred to him under Clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the Council, the Council shall proceed to adjudicate the complaint-
(i) on the basis of evidence brought to its notice by the complainant where the opposite party omits or fails to take any action to represent his case within the time given by the Council, or
(ii) on the basis of evidence brought to its notice by the complainant and the opposite party, where the opposite party denies or disputes the allegations contained in the complaint.
(c) On the date of hearing or any other date to which hearing could be adjourned, it shall be obligatory on the parties to appear before the Council. Where the complainant fails to appear before the Council on such days, the Council may in its discretion either dismiss the complaint for default or decide it on merits, where the opposite party fails to appear on the date of hearing, the Council may decide the complaint ex-parte.
(d) The decision of the inquiry shall be implemented and communicated to the respective parties and to others as may be required. In case there is any difference of opinion amongst themselves, the opinion of the majority shall be the decision.Case No. 528685/2016
FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 283 of 345 "8.8 Any person aggrieved by the decision of the State Medical Council on any complaint against a delinquent physician, shall have the right to file an appeal to the MCI within a period of 60 days from the date of receipt of the order passed by the said Medical Council: Provided that the MCI may, if it is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, allow it to be presented within a further period of 60 days.
226. In the view of the above arguments on behalf of the accused, it is found sustainable as Delhi medical Council can initiate suo moto proceedings and in particular if it has come across any case of medical negligence reported in the newspaper. Further it is on record that the Council was directed specifically from the Directorate of Health Services of GNCT of Delhi under the signatures of the Superintendent to inquire into the case. It is also important to mention herein that the proceeding initiated by Delhi Medical Council has been provided for by the statute passed by our Parliament and cannot be called into question. It is also evident from the rules quoted above that the proceedings undertaken before the Council of judicial nature and any grievances with any of the decision of the Council is subject to appeal, therefore the arguments on the part of the Ld. counsel for Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 284 of 345 the complainant that mere exoneration before Delhi medical Council do not have any bearing upon this criminal case is not sustainable. It will at least have persuasive value.
227. As already have been held in Jacob Mathew Case (supra), the decision of the Council duly formed can be appreciated by this Court. It has been categorically held that decision is an authority for what it actually decides and not what flows from it64, therefore though the decision of the Delhi Medical Council is authority upon what it has decided but what flows from it has to be inferred by the Court.
228. One of the further argument raised on behalf of complainant stands as that report of Delhi Medical Council cannot be relied upon for the reason that Delhi Medical Council being regulatory body of the Doctors and cannot give an unbiased expert opinion as they are elected by the Doctors of Delhi themselves. To substantiate the same, Order of Himanshu Singhal & Anr v. State of NCT Of Delhi, Crl. M.C. 1674/2022 & Crl.M.A. 7183/2022 passed Hon'ble High Court of Delhi is relied upon.
229. However perusal of such Order reveals that no such findings have been given, rather Order only directs that matter be referred to Maulana Azad College for expert opinion. Even otherwise, though Delhi Medical Council is elected body but the 64 State NCT of Delhi v. Ajay Kumar Tyagi, (2012) 9 SCC 685 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 285 of 345 elected members are not the part of Expert Opinion Committee, rather experts in the respective field are nominated as per statute. Also to avoid any biasness, if alleged, the provision of appeal has been provided for. Therefore this limb of argument by Ld. Counsel Sh. Sachin Jain is not sustainable.
ARGUMENT ON BEHALF OF THE COMPLAINANT OVER BURDEN OF PROOF AND RES IPSA LOQUITUR.
230. Ld. counsel for the complainant as assisted by the Ld. APP has put forth an argument which pertains to the application of the Res Ipsa Loquitur stating therein that the case is covered with Res Ipsa Loquitur and have specifically relied upon the judgement of Jacob Mathew v. State of Punjab65, which observes as:-
(8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, specially in cases of torts and helps in determining the onus 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. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.
231. It has been argued on behalf of the complainant that the observation by Hon'ble Supreme Court of India do not 65(2005) 6 SCC 1 : 2005 SCC (Cri) 1369 : 2005 SCC OnLine SC 1137 at page 34 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 286 of 345 completely rules out the application of the above doctrine in criminal cases and this is a fit case wherein such doctrine must be invoked.
232. It is apparent that the judgement upon which the complainant has relied is not in his favour. Res Ipsa Loquitur is a doctrine that is invoked in the province of Torts and that also not in all cases but only in those cases when occurrence in ordinary course of thing does not happen if the practitioner has exercised reasonable care and skill. However to invoke such doctrine, it is essential to establish that the occurrence itself is the evidence of negligence and it must also be demonstrated by the prosecution herein that it is an occurrence, which, generally, should not happen and also for in both cases where by no means the claim of negligence could be established on the part of accused.
233. One is compelled to quote an English law on this point that 'in practice, it is likely that res ipsa Loquitur will be limited in a medical context to cases of foolishness and clumsiness, and it will apply rarely, if ever, where the negligence alleged lies in the choice of procedure to be followed66. Therefore it is apparent that in the cases of civil law even, such doctrine is used to rarely, lest the criminal case wherein this Court has not found that the doctors herein have digressed in any way out of reasonable skill and care, henceforth the arguments of the Ld. Counsel for the 66 See Ratcliffe v Plymouth H.A. [1998] Lloyd's Rep. Med. 162, 172 (Brooke L.J.; cf Delaney v. Southmead HA [1995] 6 Med. L.R. 355 (As quoted in Clerk & Lindsell on Torts, Nineteenth Edition, Page 618, Thomson Sweet & Maxwell) Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 287 of 345 complainant is not sustainable. In the present case, this Court does hold opinion that the prosecution has proved not anything to the extent wherein such doctrine could be invoked.
234. It has been further argued on behalf of Ld. Counsel for the complainant that since the operation took place behind the closed doors, henceforth it is burden upon the accused herein in view of Section 106 of Evidence Act wherein onus lies upon the present accused to explain their conduct. Ld. Counsel for the complainant had relied upon the Judgment of Sardar Gurbaksh Singh Vs. Gurdial Singh Manu/Mh/0097/1927 and in paticular Paragraph 30:-
It is the bounden duty of party, personally knowing the whole circumstances of the case, to give evidence on his own behalf- and to submit to cross- examination. His non- appearance as a witness would be the strongest possible circumstance going to discredit the truth of his case.
235. Complainant has also relied upon State Of West Bengal Vs. Mir Mohammad Omar And Ors. AIR 2000 SC 2988, (2000) 8 SCC 382 and runs as:-
If the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 288 of 345 offences would be the major beneficiaries, and the society would be the casualty. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused.
236. It is important to mention herein that Section 106 of Evidence Act is exception to Section 101 of Evidence Act. It provides that when any fact especially within the knowledge of any person, the burden of proving that fact rest on him. It is not intended to relieve the prosecution of duty of proving that the accused has committed the offence with which he is charged. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate, disproportionately difficult for the prosecution to establish facts which are "especially" within the knowledge of the accused and with the accused could prove without difficulty or inconvenience67.
237. The word "especially" stresses that it means facts which are pre-eminently and exceptionally within the knowledge of the accused68. The Privy Council has refused to construe this section to mean that the burden lies on an accused person to show that he 67 Shambhu Nath v. State of Ajmer, AIR 1956 SC 404, p 406 68 Ibid.Case No. 528685/2016
FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 289 of 345 did not commit the crime for which he is tried (reference be made to the judgement of Attygally v. King, AIR 1936 PC 169).
238. In the present case, it is upon the prosecution to prove and is espoused with the burden of proving the gross negligence on the part of the accused and prosecution has to prove it affirmatively. The prosecution cannot be allowed to be swept off its duty to prove the case beyond reasonable doubt. The Ld. counsel for the complainant have also harped upon the doctrine of Last Seen Together Theory. However it is essential to mention, that Last Seen Together is the facet of Section 106 of Evidence Act. It has been observed by Hon'ble Supreme Court of India in the case of State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254 :
(2007) 1 SCC (Cri) 688 : 2006 SCC OnLine SC 1163 at page 265:-
23. It is not necessary to multiply with authorities.
The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 290 of 345 so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd., Re. [AIR 1960 Mad 218 : 1960 Cri LJ 620]
239. Henceforth, it is evident that it is not the case wherein the accused has not been subjected to detailed scrutiny of every aspect of their operation and have been subject matter of more than six experts. Henceforth, in the present case all the documents have been seized, body has been subjected to medical examination, expert evidence have been provided for, three Medical Boards have been formed to give their opinion with Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 291 of 345 respect to negligence and also all the expert have been subject to rigorous cross-examination. This does not furnish any opportunity for invoking Section 106 of Evidence Act, therefore the argument of the Ld. Counsel for the complainant is not sustainable and Judgments quoted aforesaid itself speaks for non- application Section 106 and Last Seen Together Theory.
CONCLUSION
(a) It is not in controversy that the present case is an elective case wherein the parents were aware that their child was facing breathing problem and therefore have approached Apollo Hospital as well as accused no. 1 for the treatment of such breathing problem.
(b) Consequent thereof, the parents of the deceased child has approached Apollo Hospital wherein he was diagnosed with adenoids which stands confirmed by the deposition of PW-20, Dr. Kalpana Nagpal. The parents of the deceased child consequent thereof approached accused no. 1, who undertook additional test and came to the same conclusion that the deceased was suffering from adenoids. Same was also confirmed by the deposition of PW-10, Dr. Amarjeet Handa. It was also confirmed by the biopsy report Ex. PW4/D2 dated 06.10.2004 and conceded by PW-4 Dr. L.M. Sharma, who upon perusal of biopsy report admitted that Master Komal Khatri was suffering from non-specific adenitis. This also stands corroborated in view of defence Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 292 of 345 evidence and in particular Ex. DW1/3(OSR) wherein Dr. Sunil Nangia, ENT Expert duly nominated by Delhi Medical Council had come to the conclusion that it is clear-cut case of Adenoid Hypertrophy. In view of five doctors coming to the same conclusion that the patient was suffering from adenoids further corroborated by biopsy report, lead to irresistible conclusion that the patient was suffering from adenoids which was correctly diagnosed by accused no. 1 and the theory of fake disease as enunciated by the complainant in his complaint Ex. PW-16/DZ does not hold ground and beyond shadow of doubt, the disease in the present case was correctly diagnosed.
(c) The confirmation of the disease adenoids does not warrants any justifiable demand of PW-1, PW-2 and PW-3 qua CT Scan and Angiography. The credibility of PW-1, PW-2 and PW-3 and their testimony shall be dealt hereafter. It has already come on record that CT Scan or Angiography is not needed before Adenoid Surgery and turning the leaves of any classic textbook on the subject would have sufficed. The issue of Angiofibroma is clearly ruled out as by the time PW-1, PW-2 and PW-3 has come up with the imaginary theory of Angiofibroma, already three doctors i.e. PW-20, PW-10 and accused no. 1 have come to the correct diagnosis. It is also interesting that PW-1, PW-2 and PW-3 were speculating upon a disease whose specialisation neither of them have done, nor had any experience in such field of surgery. Even they are no Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 293 of 345 specialist in medical field that they were flaunting their expert knowledge as per rules of Delhi Medical Council and in particular Clause 7.20 of Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002.
(d) The father of the deceased Master Komal Khatri had duly consented to the treatment of his child and is well reflected in Ex.PW16/DX and Ex.PW16/DY. Nothing has been brought on record or have been proved by the prosecution which could taint the consent. This Court clearly finds that 'real consent' has been obtained from the father of the Master Komal Khatri. The issue of consent is within the arena of contract law. No plea of non est factum was ever propounded in the present case by the prosecution. The general principle is that a person would be bound by a written document that he has signed whether or not he has read or understood it. If there has been any misrepresentation or mistake or fraud or coercion, that has to be proved positively by the claimant who intend to take up the plea of non est factum. The Court has no hesitation to hold that the Consent was duly obtained from the father of the deceased. This also clearly reflects that there was no gross negligence on the part of doctors on or before pre-operative stage.
(e) Consequent thereof, after the correct diagnosis, the patient was treated and adenoidectomy (endoscopic) was duly Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 294 of 345 performed under the supervision of ENT surgeon i.e. Dr. Anil Handa and Anaesthetist i.e. Dr. Vivek Kumar Mangla and the operation theatre notes as well as anaesthetist notes duly reflects that the intra-operative stage was uneventful. Homeostasis was duly achieved and thereafter patient was brought to the consciousness and was shifted to ward in post- tonsillectomy position so that in the case of any bleeding, the blood could find its way through nose or mouth rather than would block any of the passageway. It is also important to mention herein that all the post-operative protocol as has been provided in the classic textbook of Scott-Brown's Otolaryngology were undertaken and nothing contrary has come on record to prove otherwise. The issue of bleeding at intra-operative stage is ruled out in view of the fact that it has been clearly conceded by the prosecution witness PW-4 Dr. L.M.Sharma wherein he has clearly deposed that extubation cannot be done if there is active bleeding from the operational site. The reflexes have been duly discussed hereinbefore and this Court has no hesitation to come to the conclusion that there was no gross negligence at intra-operative stage on the part of doctors herein. The factum of disease being adenoid, the surgery of adenoidectomy under endoscopic guidance, achievement of post-operative homeostasis, child coming to consciousness who was taken to the ward in post- tonsillectomy position with no external evidence of post- operative haemorrhage stands corroborated not only by this Court on basis of evidences appreciated but also by Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 295 of 345 virtue of Ex. DW1/3(OSR) as opined by Dr. Sunil Nangia, an ENT Surgeon.
(f) At post-operative stage, Accused no. 1 had instructed the staff nurse, technician and Doctor to note down the vitals as has been prescribed in post-operative protocols and the perusal of Operation Theatre notes clearly reflects that the vitals were noted till 8:45 AM and thereafter and emergent situation has arose. It is only at 11:35 AM, that the patient was declared dead. Between 8:45 AM and 11:35 AM, resuscitation of the patient was attempted to and have been duly considered by PW4. The external injury as mentioned in postmortem report also reflects the relevant vaccines were given in the process of resuscitation. Therefore the theory that the patient have already expired at 11:35 AM, but patient was shown to be alive at 12:30 PM is a hoax. The evidence have already been appreciated and detailed discussion has already been done. It has also been admitted by prosecution witness PW4 wherein as far as 12:30 PM was concerned, the same was directions to the staff nurse/attendants to monitor the vitals.
(g) With respect to the bleeding at post-operative stage, it has been admitted by prosecution witness PW4 that pulse rate has not been fluctuating and it was admitted on the part of PW4 that if there would have been instance of bleeding, the pulse rate as well as blood pressure would have Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 296 of 345 fluctuated, which it was conceded had not taken place in the present case.
(h) The post-mortem report was duly prepared and no irregularity has been found as far as the order for Constitution is concerned and it was prepared as Ex. PW1/A. However, it was done after office hours which cast doubt. It was observed in the post-mortem report that the gown was blood smeared however the same was not seized in spite of the fact that IO ShriRam was already present on the spot. Non-seizure of blood smeared gown as alleged by the prosecution is to be interpreted adversely to the prosecution itself. The Ld. Counsel for the accused no. 1 have rightly relied upon the judgement of State Of Maharashtra vs Mahesh Avinash Joshi And Ors decided by Hon'ble Bombay High Court on 12 March, 2021 in Criminal Appeal No. 858 Of 2007 wherein the facts of the case has almost been similar except that the 14 year old girl was operated for tonsillectomy and it was the prosecution case that the girl has succumbed to gross negligence on the part of doctors who were involved in the surgery and due to profuse bleeding, the patient has expired. The contention therein on the part of the prosecution has been that there was profuse bleeding from the mouth of the girl and the same has dropped upon the clothes of the girl and on the bed sheet, however, investigating officer had not seized the girl's clothes or bed sheet. Honourable Bombay High Court had categorically held that since such clothes and bedsheet had not been Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 297 of 345 seized therefore there is no corroborative evidence to the complaint that heavy bleeding or profuse bleeding from the mouth of the girl happen immediately after the surgery. In the light of aforesaid judgement, in the present case as well since the investigative officer has failed to seized such gown, therefore it have to be interpreted adversely to the case of the prosecution.
(i) Even otherwise, the death report which was prepared to by investigative officer Shriram as Ex.PW10/E mentioned no instance of bleeding. Had there been any such instance, it would have been duly recorded as any kind of blood would not have gone unnoticed. Where a direct eyewitness had failed to observe any factum which was alleged to have been observed 32 hours after by a medical man , the one which is direct eyewitness would be preferred over any medical or expert witness.
(j) It is also interesting to note that despite three of the doctors have already concluded that the patient was suffering from adenoids and the surgery of adenoidectomy was performed by way of endoscopy, the presence of negative finding upon the post-mortem report does not rule out the bias that was prevailed in the minds of PW-1, PW2 and PW-3. Negative findings are essential in the cases wherein there have been some allegations such as if one alleges head injury, the negative finding that there is no abrasion or bruises in head region is significant. However the negative Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 298 of 345 finding in post-mortem report Ex.PW1/A i.e. "No incision mark over the nasal orifice, palate(soft) or at zygomatic area seen. All intact." clearly reflects that despite the treatment papers in front of them which had specifically mentioned that adenoidectomy was performed through endoscopy and coupled with the demand by PW-1, PW-2 and PW-3 regarding the enquiry of CT Scan and Angiography do not sight out the biasness on the part of PW-1, PW-2 and PW-3 where their inclination was to the irresistible conclusion on their part that rather than Adenoids, the patient was or must have been suffering from Angiofibroma.
(k) Though biopsy report was available by 06.10.2004 and post-mortem report was handed over, as has been proved on record, by 06.10.2004, it cast doubt upon the credibility of the PW-1, PW-2 and PW-3 wherein they have opined the negligence on the part of the accused without going through biopsy report which was available on 05.10.2004 which have categorically revealed that Master Komal Khatri was patient suffering of adenoids.
(l) The vicarious liability of the hospital could not be found and especially could not be found when the hospital as a separate legal entity has not been arraigned as an accused. Further no omission or commission has been found on the part of the staff of the hospital or there have been any role of accused no. 2 in the present incident other than making Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 299 of 345 every endeavour for the resuscitation. The argument on the part of the complainant that the accused no. 2 was also involved in the death of Master Komal Khatri, while accused no. 2 had reached the hospital only to save the patient is too outrageous an argument. No doctor who is also the director of the hospital would ever intend any unfortunate incident wherein its hospital is subject to market forces wherein efficiency, credibility and reputation is at the highest stake. The very force of this aforesaid statement can be inferred as after this unfortunate incident, the hospital has to be shut down. No gross negligence could be found on the part of hospital authorities or in particular on the part of accused no. 2 being the director of the hospital. The detailed discussion has already been dealt elsewhere.
(m) The prosecution have recorded the statements of the persons such as witness at serial no. 3, Sh. Naresh Pratap Singh, whose statement under Section 161 Cr.P.C. reveals that OT technician Kuldeep, OT Nurse Vibha, Ward Boy Anil., Ms. Sheeja(Staff nurse), Ms. Alice (Staff nurse), Dr. Ashish Gautam were available at the time of the incident. Since the prosecution has already examined 21 witnesses and have not shied away to cite 24 witnesses, for the reasons best known to the prosecution, why the aforesaid eyewitnesses who were essential to unfold the narrative of the prosecution have been omitted only creates doubt upon the case of the prosecution. It has been categorically held Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 300 of 345 in Habeeb Mohammad v. State of Hyderabad 69 wherein the Duty of Prosecution has been outlined as:-
In a long series of early decisions of the High Courts, the view taken was that in the trial of a case relating to a serious crime the prosecution was bound to place before the Court all available evidence, and that it was its duty to do so even when that resulted in placing before the Court conflicting accounts of an incident. This view was rejected by the Privy Council in Stephen Senivaratne v. King, AIR 1936 PC 289, as being too broad, and the correct proposition of law in this behalf was laid down as under:
1. The prosecution is not bound to discharge the functions of both prosecution and defence, and is not required to call witnesses irrespective of considerations as to number and reliability; to hold otherwise would mean that the prosecution would first have to call and examine any number it of witnesses whom it may later have to discredit by their cross-examination.
2. However, it is the duty of the prosecution to call and examine all witnesses whose evidence is essential to the unfolding of the narrative on which the prosecution case is based, whether in the result their brw testimony helps or defeats the prosecution case.
69 AIR 1954 SC 51: 1954 CrLJ 338: 1954 SCA 514: 1953 SCJ 678 1954 SCR 475: 1954 MWN 233 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 301 of 345 The question was again considered by the Privy Council in Adel Mohammad v. Att. Gen. Of Palestine, AIR 1945 PC 42, and the proposition was laid down as under:
1. The discretion as to calling a witness lies with the prosecutor, and the Court will not interfere with the exercise of that discretion unless it be shown that in withholding any witness the prosecutor was influenced by some oblique motive.
2. The prosecution is not bound in law even to tender to the defence any witness even when his name is on the charge-sheet, for the purpose of cross-examination, but in the interests of justice it is desirable to do so at the close of the prosecution case.
The correct rule in this behalf which evolves from these decisions is as under:
1. The prosecution is not bound to examine all the witnesses named on the charge -sheet.
2. The prosecution is however bound to examine all material witnesses whose evidence is essential to the unfolding of the narrative of the events on which its case is based, and this is particularly so when it is not alleged that he is not a witness of truth. If a witness is material by the application of the above test, he must be examined even when the prosecution apprehends that his evidence will not be favourable to the prosecution.Case No. 528685/2016
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3. If a material witness is not examined, and the prosecution has no satisfactory explanation to offer for his being withheld, the accused is entitled to ask the Court to draw the inference under Section 114, Illustration (g), of the Evidence Act, that if produced the evidence of that witness would be unfavourable to the prosecution.
4. Not only that, but further, such a circumstance casts a serious reflection on the fairness of the trial, and if the appellate Court is satisfied that such omission has caused a prejudice to the accused, the conviction must be set aside.
(n) It also has been further held in Karnesh Kumar v. State of Uttar Pradesh70 that Prosecutor is not to adopt device of keeping back eye-witnesses with following observation:-
A prosecutor should never adopt the device of keeping back eye-witnesses only because their evidence is likely to go against the prosecution. The duty of the prosecutor is to assist the Court in reaching a proper conclusion. It is open, however, to the prosecutor not to examine witnesses who is in his opinion have not witnessed the incident, but normally, he ought to examine all the eye-witnesses in support of his case. But in a case where a large number of persons have witnessed the incident, it is open to him to make a selection which must, however, be fair and honest and not with a view to suppress inconvenient witnesses.
70 AIR 1968 SC 1402: 1968 CrLJ 1655: 1968 SCD 1097: (1968) 2 SCWR 817 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 303 of 345 Therefore, if it is shown that persons who had witnessed the incident have been deliberately kept back, the Court may draw an adverse inference and in a proper case record such failure as constituting a serious infirmity in the proof of the prosecution case. Where the High Court on an examination of the evidence held that it was not possible to say that the prosecution had deliberately withheld two witnesses from any oblique motive and there was nothing in the evidence to suggest that they were not produced because they would have turned to be inconvenient witnesses, it could not be said that in such circumstances the High Court ought to have drawn an adverse inference.
(o) If independent witnesses were available at the time of occurrence and were not examined then it would be interpreted adversely to prosecution as has been held in D.V. Shanmugham v. State of Andhra Pradesh 71 wherein it has been observed that:
It also appeared from the evidence of PW 2 and PW 8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in 71 AIR 1997 SC 2583: (1997) 5 SCC 349: 1997 SCC (Cri) 691 (700): 1997 CrLJ 3129:
1997 CrLR (SC) 426 JT 1997 (5) SC 4: (1997) 2 Crimes 41) Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 304 of 345 such a situation the prosecution case has to be scrutinized with more care and caution.
(p) Therefore, non-examination of OT technician Kuldeep, OT Nurse Vibha, Ward Boy Anil., Ms. Sheeja (Staff nurse), Ms. Alice (Staff nurse), Dr. Ashish Gautam further compounded by deposition of IO Insp Azad PW7 that he would not like to see the statement of Naresh Pratap Singh written by him cast serious doubt wherein the investigative officer himself is not inclined to reveal the truth. The investigative officer has obstinately ignored and has been adamant not to look at the piece of paper of the witness which he has written in the due course of his legal duty. It has been rightly said that the falsehood is a common subterfuge of guilt. The reluctance of the investigative officer compels Court to infer than otherwise.
(q) It was argued on behalf of the complainant that though the prosecution has not examined the witnesses, the same could have been summoned by the accused herein. Ld. Counsel for the accused no. 2 and 3 had argued that the witnesses have unfortunately expired. This Court is not oblivion to the fact that it is almost 18 years since the incident took place and it is the primary duty of the prosecution to prove its case beyond reasonable doubt and accused cannot be burdened to prove its innocence, rather it has to displace the case of the prosecution only upon the preponderance of probability.Case No. 528685/2016
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(r) It is apparent that two of the Medical Board Opinion has been placed before this Court by the prosecution. The one pertains to Ex. PW1/B which was allegedly opined on 01.10.2004 and the subsequent medical opinion pursuant to Ex.PW12/F with the view to further investigation as Ex. PW2/1 dated 14.10.2004. Ex.PW1/B was based upon 35 treatment papers as well as 2 X-ray films while the subsequent Ex.PW2/1 which was taken up for further investigation was based upon 25 photocopies of treatment papers. This itself reveals that the material at disposal to furnish opinion Ex. PW2/1 was less in number than Ex. PW1/B. Further there has been blatant violation of the Principle of Natural Justice in opining Ex. PW2/1 which have been already discussed and dealt in detail. The opinion with respect to the negligence of accused herein on Ex.PW1/B and Ex.PW2/1 already stands demolished in detail and requires no further elaboration. What can be expressed as something beyond a shadow of doubt as to for what reason the subsequent opinion Ex. PW2/1 dated 14.10.2004 was procured when it was not qualitatively or normative terms superior than the previous one still remains a matter of speculation. This does not also rules out the malafide in furnishing Ex. PW2/1 dated 14.10.2004. This is compounded by auto-nominated PW-2 in both the Medical Opinion Board which only goes on to shake further credibility.
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(s) The theory of postmortem artefact cannot be ruled out wherein due to time span between the preservation of the body and examination of the body, there has been lapse of considerable hours. Further the postmortem report have assigned asphyxia as a cause of death however it has been inconsistent in its formulation and postmortem report Ex. PW1/1 is inconsistent and many of the findings that would have gone to prove the case of asphyxia are missing and has been recorded to the contrary as would have been found if the case would have been asphyxia.
(t) The accused have successfully placed before this Court its defence and in particular the report from the Delhi Medical Council duly proved before the Court wherein it was categorically observed "The Council observes that the investigations undertaken for the diagnosis, the diagnosis made, treatment provided to the patient including preoperative, intra operative and post operative care and management, were well within the ambit of known professional practices required for such illnesses and events. The diagnosis of Adenoid Hyperplesia was corroborated by the hystopathological findings of the Tonsillar tissues removed during the surgery. As such, no medical negligence could be attributed. The Council also observes that some of the conclusions drawn in the postmortem report appear to be beyond the scope of postmortem examination and have been drawn on the basis of incomplete assessment of the facts of the matter." The Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 307 of 345 committee constituted by medical Council included an ENT Surgeon and all the objections that were brought before such report has been dealt categorically and has found to be not sustainable."
(u) No poison or any extra amount of any anaesthetist drugs were found in the sample that were duly sent to CFSL Hyderabad and was proved before the Court. This clearly rules out any instance of anaesthetic death. Further any apprehension of tampering with the samples were ruled out upon evidence which have been already dealt.
(v) It is also essential to appreciate the testimony of various prosecution witness which proves the inadequacy and have travelled beyond their specialization arena on their part before they could express their expert opinion. Their undue transgression was beyond the scope of their examination.
(w) PW1, Dr. V.K. Goel was mere an M.B.B.S. who did not possess any ENT qualification or had ever worked with ENT Department. PW1 never had any practical experience in conducting adenoid surgery. Though he was aware of the alleged history of adenoids but had chosen to give his opinion without obtaining any comments from the doctors who have conducted surgery, in the present case, the accused. This particular aspect was against the norms of principles of natural justice. Though the papers as well as to x-ray films were handed over on 04.10.2004, however, Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 308 of 345 contrary to the facts, he had stated to have received them on 01.10.2004 which is utter contradiction. He did not remember whether biopsy was conducted or had any opinion with respect to the biopsy and it is only after looking through the records that he made himself aware that such tissue was sent for biopsy report. PW1 claiming himself to be an expert had categorically deposed that he would not advise whether adenoidectomy is appropriate procedure as advised by Apollo Hospital for adenoids and he even could not say whether CT Scan or Angiography is conducive on patient of adenoid surgery. This itself reflect the how opinion by non-expert in particular field of specialty is not devoid of perils and that too on the part of PW1 to have opined over the negligence of the doctors whose field he was not even exposed to. His non-expertise in the field of ENT is to the extent that he could not answer even that whether X-ray was needed for adenoid surgery. Any textbook on the subject would have enlightened him but he never took any pain to do so for the reasons best known to him. It is also intriguing to note that he admits that biopsy report could be collected on 05.10.2004 however no reason has been furnished as to why he has deliberately omitted to do so. Being a member of the medical fraternity, he was supposed to give a medico legal opinion, the conduct of this witness cannot be said to be responsible one. Another interesting deposition on his part has been that he admitted that the bleeding is a known complication of adenoid surgery which can easily be Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 309 of 345 controlled by skilled medical man however earlier he has himself admitted and has pleaded ignorance about this field and about the surgery. One who does not know the field as well as the surgery and also do not have any experience of doing so have delved into the complication of such surgery when he himself is theoretically ignorant of. He even pleads ignorance whether bleeding can develop up to two weeks or after two weeks. He further has deposed that submucous haemorrhage was not the source of blood in the stomach but have failed to substantiate his reasons of such opinion to the satisfaction of the Court. The preparation of postmortem report is also under doubt as PW1 was ignorant as to when such report was prepared and was even collected by the investigative officer and only when leading questions were put to him that he started parroting them. Later on he proposes that the postmortem report was prepared after office hours due to law and order problem but he could not specify such problem. Though PW-1 had jointly opined the negligence of the accused as Ex.PW1/B but he had went on to categorically state that he has not condemned the doctors for conducting or not conducting the CT Scan and Angiography. Though he has admitted that he has called for Angiography and CT Scan but though being an M.B.B.S., he is ignorant of any medical textbook or medical guidelines which could prescribe for such test as mandated standard preoperative procedure. Later on he improvises himself for falsehood is subterfuge of guilt that Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 310 of 345 such report were not insisted but were demanded only. Later on he concedes that he cannot say that CT scan and Angiography was required to conduct on patient of a adenoid surgery before operation. It is also important to make observation that when this witness was asked that nonconducting of such aforesaid respective test prior to surgery is not known for holding the doctors treating liable for the wrong preoperative diagnosis to which he simply avoided the answer upon question directly and skipped himself pre-operative and post-operative management. Though this witness has no clue about the adenoid surgery or possess any qualification or had any experience of surgery but went on to make observation that there was excessive haemorrhage at operative site which must be controlled to avoid incident, as if, he was already there at the time when surgery was being performed.
(x) The reputation of PW1 to avoid the question is an impeachable. He deposed and admitted that small type of tissue was oozing blood even after 32 hours of death and when he was asked categorically as to where the blood will go after such oozing, he avoided the question and went to the consequence with respect to serum and liquid blood. Thereafter, Ld. Counsel for accused no. 2 and 3 had to directly ask him whether it will find its way in the airways or the wind pipe, thereon PW1 stated that such liquid blood will move towards gravity/slope. It is irony that such expert witness is even ignorant of post-tonsillectomy Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 311 of 345 position in which the patient was positioned after he has been operated and it only proves to his ignorance and the height of the matter is that he is opining the depth of the negligence of the doctors in the field where he does not possess the qualification or knows about it or had experience or had flaunted his expertise at least theoretically before the Court. Though the postmortem findings have been admitted to have been recorded on rough notes, it cannot be said that it is not a primary piece of evidence as when three of the doctors are conducting a postmortem examination and if any difference of opinion might or would have crept in, that has to be written on a separate piece of sheet so that the postmortem report could be prepared carefully without too many corrections. The reputation of PW1 to improvise and digress from his previous opinion do not ceases. PW1 stated that the blood along with the blood clot was found in the stomach and the source of this blood is ONLY operating site as no other source was found during the postmortem examination however later on he opines that blood from operating sites MAY move to food pipe voluntarily or involuntarily due to excessive bleeding. Though he does not refrain to give his expert advice with respect to the blood which was measured with a pan and admits that gastric juices are present in stomach but claimed ignorance as to how much of gastric juices are formed in stomach, however improvises that it would be negligible as a patient before the surgery are empty stomach. The testimony of the PW1 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 312 of 345 further swoops down when he admitted that the common anaesthetic compound and common poison could not be detected in CFSL Report Ex. PW1/D2 but objected that there is no opinion regarding sufficient time after completion of surgery and the patient was alive is given in the CFSL report. However when he was confronted as to how much time would be required for anaesthetic medicine to come out of blood, PW1 even after perusing the report could not substantiate The time not stated any medical literature but could reveal such time and when this witness have already shooting dark thereafter admitted that CFSL and postmortem report, there was no mention of that being caused to do any anaesthetic agent. Last but not the least, to use the most stereotypical words, PW1 after deposing elaborately to save his skin claims that opinion given upon the negligence is not Board Opinion and therefore in view of such deposition, it is then not clear as to whose opinion it is. Such is the testimony of one of the witness who claims to be expert member, had never possessed any qualification in sub-specialty or had any experience or had performed any such surgery goes on to express his opinion with respect to negligence of the doctors. This witness is not at all reliable to state the negligence in the field whom he does not have acquaintance with.
(y) PW2, Dr. K.L. Sharma possessed the qualification of M.D. Forensic. He admitted to be Chairman of the Board Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 313 of 345 and that the death took place at 11:35 AM. In his deposition however for the reasons best known to him he created a deliberate sensation by stating that accused no. 1 have shown the patient alive at 12:30 p.m., as alleged by Ld. Counsel for the accused no. 1 cannot be ruled out. PW2 is the witness whose credibility to uphold the principle of natural justice stood shaken when he auto- nominates himself in the subsequent medical board opinion dated 14.10.2004. He admitted to have not registered himself with Delhi medical Council and this particular facts also goes on and gives him a freedom to practice monologues during his testimony. It is pertinent to mention herein that he had been working at Aruna Asif Ali Hospital. This particular fact is important as it will go on to prove his mala fide in the present case. Though he categorically denied to have nominated himself as a member of medical board but upon the facts he certainly did and after nominating himself as adroitly as he could, he makes a request to Medical Superintendent to kindly provide for the Surgeon and Anaesthetist. The cloak of fairness and authority that he had worn could not be hidden for so long. He himself admits that autopsy report can be reviewed but being a Senior Chief Medical Officer, he would be ignorant of the due rules of reviewing is something which do not inspires confidence. He pleads ignorance as to the 35 papers that he has seen in preparing a postmortem report dated 01.10.2004 and out of those, which of the 25 papers he has seen to prepare a report Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 314 of 345 dated 14.10.2004 he is clueless. He also admits that he has not done specialization in ENT, never carried out adenoid surgery, and went on to extent of not speaking the truth that ENT specialist was not available at the time of formation of medical board however the defence in the present case has proved to the satisfaction of the Court that there was ENT department and an ENT Surgeon (Ex. PW7/DD) in Aruna Asif Ali Hospital way back in 2004 and it was even available at the time when both the reports were being prepared. It is pertinent to mention herein that this witness need not to be specializing in ENT department but had to only deal with the forensic part. He admitted that none of the member for ENT specialist and even in it's prudent sense he had not made any requests for ENT specialist in the medical board, though had the conferment of chairmanship upon him. Though he admitted that postmortem examination is fact-finding enquiry but claims that "the person whether Delhi medical Council or any other institution who had not seen the dead body is not eligible to comment over the findings of postmortem examination." The haughtiness on the part of this witness cannot be ruled out. He even do not seems to respect the Delhi Medical Council which is a statutory body and has been duly formed by way of enactment passed by our Parliament. This Court is compelled to infer that the reason for such statement must have been that he was not registered with Delhi medical Council and had every leverage to make such unwarranted comments and Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 315 of 345 exaggerated claims. It is also not clear that when PW2 had stated the one who has not seen the dead body is not eligible to comment over the findings of postmortem examination, then the subsequent board that was formed on 14.10.2010 wherein Dr. M. Lal and Dr. L.M. Sharma were members, this statement only goes on to prove the redundant role that was expected of Dr. M. Lal and Dr. L.M. Sharma in which PW2 had adroitly had auto- nominated himself. It is apparent that such witness PW2 with such foundational value would have only sought Dr. M. Lal and Dr. L.M. Sharma to achieve its objective best known to him and would also have impressed two other member with his foundational philosophy of one who has not seen the dead body is not eligible to comment upon the finding of postmortem examination. This also finds expression wherein PW4 (Dr. L.M. Sharma) and PW5 (Dr. M. Lal) had not supported the foundational philosophy of the PW2 and have digressed in their opinion before the Court, not supporting the expert opinion expressed by PW2. This witness has opinion about the negligence by mere seeing the body but has not cared to go through biopsy test, treatment papers of Balaji Hospital and have denied to have gone through treatment paper of Apollo Hospital. After this much of cross-examination, he even denies that he ever remember to have called for CT scan and Angiography and it is only after that the letter was shown Ex. PW2/X and reply via PW2/D1, that he could remember. The biopsy report is one of the credible report Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 316 of 345 in inferring the disease however Biopsy report was considered to be not important to draw the conclusion of postmortem report as per him. This clearly goes on to show the selectiveness on the part of PW2 for the reason best known to him as a forensic expert. He has sought CT Scan and Angiography to detect the disease that the patient was suffering from but refrains from perusing the biopsy report. He admitted that no complication of bleeding was noted by monitoring staff and further conceded that no fact of fluctuation of blood pressure and pulse was recorded in the treatment papers of Balaji Hospital. This witness does not require any more comment on the part of this Court as the above testimony would itself reflect the quality of it.
(z) PW3 Dr. V.K. Jha expertise is not more than what the other members have possessed. He is not even have any specialization in forensic, not conducted any adenoid surgery, was not an ENT surgeon or a general surgeon, rather mere MBBS graduate. He even admitted to the extent that he never got any opportunity to deal with post- operative care of adenoid surgery however claims to have read about the same in MBBS course. After this much of cross-examination he passes the buck upon the other two doctors stating that the findings were recorded by PW1 and the postmortem was conducted by PW2 who was the chairman and PW2 decided as in what a postmortem was be conducted and later on he improvises that procedure is important. His ignorance is well evident about the subject Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 317 of 345 by the cross examination portraying himself to be mere spectator and henceforth it is not worth commenting upon any further.
(aa) PW4 Dr. L.M. Sharma was a senior consultant of Anaesthesia and critical care and had opined that he has no specialization in ENT and have never received written order to join medical board but was informed verbally. He admitted that the biopsy report is a sure test of confirming a tissue and diagnosis which is at odd with the deposition of PW2. He admitted categorically that patient was declared dead at 11:35 AM by accused no. 1 and that Death summary was prepared by accused no. 1 at 12:35 PM. He categorically admitted that the fact of 12:30 PM which was sought to be proved to be fabricated was with respect to the time to which the vitals of the patients were to be recorded and was in the form of instructions to the attendants. He admitted that Master Komal Khatri was suffering from non-specific adinitis and in contradiction to PW2 admits that CT Scan and Angiography is not needed for adenoid surgery. He only suspected the disease of Angiofibroma and later on concedes that there is no history suggested of angiofibroma. He further admitted that in the case sheet of operation of deceased, there is no noting of bleeding of naso-pharynx. He admitted that there was no fluctuation of blood pressure and pulse. He opined that there can be no bleeding from the nose after the adenoid surgery because in Adenoid Surgery, oral intubation is Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 318 of 345 always done and immediately if bleeding occurs, it is removed by suction and packing is done. He opined that no extubation can be done if there is active bleeding from the operational side. He admitted that Dr Anil Handa has taken all the preventive measures as noted in case history and appropriate resusitative measures were taken at 9:30 AM. Contrary to PW2, he spoke the truth and admitted that there was ENT department in Aruna Asif Ali Hospital.
(ab) The surgeon who was chosen to be part of the medical board dated 14.10.2004 was PW5 Dr. M. Lal wherein he was only general surgeon and had no specialization in ENT or have worked in ENT department and admitted to the extent that the blood smeared gown was not produced before the medical board.
(ac) PW6, Director In-charge had categorically stated that common anaesthetic compound and common poison could not be detected in the samples which was sent of Master Komal Khatri which rules out any instance of anaesthetic death.
(ad) PW7, Retd Inspector Azad Singh, assigned as investigative officer and have visited Balaji Hospital had deposed that he do not remember names of the doctors attending staff and nurses disclosed by the Administrative Officer in his statement as recorded under Section 161 Cr.P.C. Further he deposed that he would not like to see the Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 319 of 345 statement of Naresh Pratap which was written by him though he conceded that name given by the administrative officer in this statement is a matter of record and he has not cared to examine any attending staff associated in the surgery, nor have examined any operation equipment used in the operation. He had not even seen any bloodstained count in the hospital and had not obtained any opinion from the ENT specialist regarding the case.
(ae) PW-11 Retd. IO SI Shri Ram had deposed and in utter contradiction that the postmortem was conducted in the morning of 01.10.2004 however upon record it has been stated to be that postmortem examination were conducted after office hours. He admitted that the x-ray films from accused no. 1 were received on 04.10.2004. He categorically stated that he has not made observation with regard to the presence of blood in column number seven of the deaths report. He admitted to have not examined any doctor or staff of ward from where the body of the deceased was taken into possession. He further deposed to have shown all the articles seized by him including endotracheal tube to the doctors of the postmortem board however the postmortem board have denied it. He had categorically stated that he had not seen or seized any bloodstained gown of the deceased. It is also not clear as for the testimony of PW11 as to when the treatment papers were received on 04.10.2004 then through what mode they Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 320 of 345 came into possession of the PW-1, PW-2 and PW-3 By 01.10.2004.
(af) In view of the fact of the PW-1, PW-2, PW-3, PW-4 and PW-5 and the opinion of negligence that has been opined by these doctors which have been shattered as per the appreciation of evidence and the presence of report from the Delhi Medical Council stating no gross negligence on the part of the doctors/accused herein only goes on to prove no gross negligence on the part of accused herein. It is further pertinent to mention herein that the practice of opining negligence, as has been done in this case, have been observed to have been beyond the scope of examination by the Delhi medical Council.
(ag) What is blatant violation in this case is that Hon'ble Supreme Court of India have already propounded the law with respect to medical negligence in the case of Jacob Mathew v. State of Punjab, (2005) 6 SCC 1, and this chargesheet was filed in the year 2007 therefore it is evident that such case should not have been filed by the investigative agency at the very first instance wherein the Delhi Medical Council has already held that "The Council observes that the investigations undertaken for the diagnosis, the diagnosis made, treatment provided to the patient including preoperative, intra operative and post operative care and management, were well within the ambit of known professional practices required for such illnesses and events. The diagnosis of Adenoid Hyperplesia was corroborated Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 321 of 345 by the hystopathological findings of the Tonsillar tissues removed during the surgery. As such, no medical negligence could be attributed. The Council also observes that some of the conclusions drawn in the postmortem report appear to be beyond the scope of postmortem examination and have been drawn on the basis of incomplete assessment of the facts of the matter." The committee constituted by medical Council included an ENT Surgeon and all the objections that were brought before such report has been dealt categorically and has found to be not sustainable." This Court is at pain to observe that Doctors herein has to go through this oppressive years of 18 years when the evidences were available of their exoneration before the filing of the chargesheet. When, coming layer, this has been done contrary to law that have been the propounded by honorable Supreme Court of India in Jacob Mathew's case. The loss that has been suffered by all the parties is inexpressible. (ah) In Lyon Medical Jurisprudence72, it has been observed:-
Common pitfalls:
..... It must be noted that failure of treatment in itself does not constitute negligence. Unfortunately, relatives often equate the duty of care and reasonable skill and care with cure or recovery or successful outcome in a case, especially of surgery. Failure of treatment or death due to complications does not constitute dereliction of the duty of care, nor does it reflect failure to provide reasonable skill and care...
72 11th Edition, Delhi Law House, P. 342-343 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 322 of 345 Medical documentation and involvement of a specialist : ... The help of an impartial expert in the same field of specialisation as that of the practitioner against whom the complaint of negligence has been lodged, should ideally be involved.
Postmortem examination: .. Additional experts, from the speciality concerned may be involved to obtain their expert opinion on the findings.
....Additional investigations including histo-pathological studies and chemical analysis should be considered as part of workup.
Opinion forming:
The editors would like to express a note of caution. It is neither the job nor a correct practice by a forensic expert to summarily comment on the aspect of negligence in his postmortem report, while giving his opinion.... .....The tendency amongst forensic experts to extend their opinion to the point of pronouncing a judgment is legally incorrect....
In criminal negligence, there is gross negligence, which constitutes a criminal offence. As they pertain to the action of the offender i.e. the negligent physician, a postmortem report can aid in establishing the nature of the act committed, but cannot be the complete basis for establishing all the circumstances of a case. In cases of criminal negligence, mens rea is absent. Board of doctors: ..... The composition of the board should be such that no questions should be sustainable Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 323 of 345 about either its competence or its impartiality and objectivity.
Expert and subsequent opinion: A subsequent opinion is warranted where all relevant facts pertaining to a case were not available at the time of postmortem examination. (ai) It has also been held in the case of Jacob Mathew v.
State of Punjab73, Negligence by professionals
18. 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 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 73 (2005) 6 SCC 1 : 2005 SCC (Cri) 1369 : 2005 SCC OnLine SC 1137 at page 18 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 324 of 345 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 practises.
(aj) It is apt to quote here the dictum as held in Canadian case of Arland v. Taylor74, wherein the Judge observed, which can have persuasive value as, that the reasonable person, is not an extraordinary or unusual creature; he is not superhuman; he is not required to display the highest skill of which anyone is capable; he is not a genius who can perform uncommon feats, nor is he possessed of unusual powers of foresight. He is a person of normal intelligence 74 [1955] OR 131 at 152.
Case No. 528685/2016FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 325 of 345 who makes prudence a guide for his conduct. He acts in accord with general and approved practice.
(ak) The legal objections as were taken on behalf of the accused no. 2 & 3 with respect to jurisdiction, cognizance being taken twice, the prayer to stop the proceedings under Section 258 Cr.P.C and the standard upon which accused no.3 must have been tried as an accused must have been the same standard as that of Section 319 Cr.P.C. was found to be unsustainable.
(al) The contention of the complainant with respect to the Res Ipsa Loquitur, Section 106 of Evidence Act and Last Seen Together Theory was found to be unsustainable as well.
(am) Therefore upon the appreciation of the evidence this Court has not found that there was any act or omission on the part of doctors herein which has led to the cause of the death or was causa causans for the death. Nothing could be proved on the part of the prosecution to prove the gross negligence on the part of the doctors herein. There has been no error of judgement or violation of any rules, though such error of judgement or violation could not be suffice to hold the doctors herein as criminally negligent. The accused herein has performed the operation which a medical professional in his ordinary sense and prudence would have done. The standard of Bolam test and even that Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 326 of 345 of R. V. Adamko as approved by Hon'ble Supreme Court of India have been met wherein no gross negligence could be attributed on part of accused no. 1 and 3. Nothing has been brought on record to attribute criminal negligence on the part of accused no. 1 & 3. The evidences that has been placed on record have gone to prove that accused no. 1 and 3 were duly qualified and possessed a reasonable degree of competence as well as skill. No vicarious liability could be found on the part of accused no. 2. The report from Delhi Medical Council as was furnished during the defence evidence had met the dictates of Jacob Mathew Case wherein a guideline has been laid down that the investigating officer should, before proceeding against the doctor accused of rash and negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service, qualified in that branch of medical practice or can normally be expected to give an impartial and unbiased opinion applying the Bolam test to the facts collected in the investigation. The two medical board report as furnished by the prosecution dated 01.10.2004 and 14.10.2004 has been shattered on appreciation of evidence and even the Principle of Natural Justice has not been followed in furnishing a report dated 14.10.2004. Even otherwise there was no expert in both the medical opinion Ex. PW1/B and Ex. PW2/1 was qualified in that branch of medical practice i.e. ENT Surgeon, which goes to the root of the case. Per contra, the report of the Delhi Medical Council wherein an Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 327 of 345 ENT Surgeon Dr. Sunil Nangia was present is credible and nothing has been brought on record to doubt the same. The Delhi medical Council have duly held no gross negligence on the part of accused herein and have held categorically held "The Council observes that the investigations undertaken for the diagnosis, the diagnosis made, treatment provided to the patient including preoperative, intra operative and post operative care and management, were well within the ambit of known professional practices required for such illnesses and events. The diagnosis of Adenoid Hyperplesia was corroborated by the hystopathological findings of the Tonsillar tissues removed during the surgery. As such, no medical negligence could be attributed. The Council also observes that some of the conclusions drawn in the post mortem report appear to be beyond the scope of post mortem examination and have been drawn on the basis of incomplete assessment of the facts of the matter."
(an) In the case of Kali Ram v. State of H.P.75, Hon'ble Supreme Court of India have observed :-
23. Observations in a recent decision of this Court, Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033] to which reference has been made during arguments were not intended to make a departure from the rule of the presumption of innocence of 75 (1973) 2 SCC 808 : 1973 SCC (Cri) 1048 at page 819 Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 328 of 345 the accused and his entitlement to the benefit of reasonable doubt in criminal cases. One of the cardinal principles which has always to be kept in view in our system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused.
There are certain cases in which statutory presumptions arise regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the Court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption. The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal.
......
25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 329 of 345 views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the Court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the Court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt. Of course, the doubt regarding the guilt of the accused should be reasonable; it is not the doubt of a mind which is either so vacillating that it is incapable of reaching a firm conclusion or so timid that is is hesitant and afraid to take things to their natural consequences. The rule regarding the benefit of doubt also does not warrant acquittal of the accused by report to surmises, conjectures or fanciful considerations. As mentioned by us recently in the case of State of Punjab v. Jagir Singh [(1974) 3 SCC 227 : 1973 SCC (Cri) 886] a criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the offence with which he is charged. Crime is an event in real life and is the product Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 330 of 345 of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the Court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the Courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures.
(ao) The prosecution has failed to prove failure of any surgical or anaesthetic device or suspected malposition of endotracheal tube or any expert opinion to the satisfaction of this Court with respect to malfunction or any toxicological/anaesthetic overdose.
(ap) Prosecution has failed to prove in any clear terms error of any pre-operative diagnosis or any lack of care in subsequent post management by the Surgeon & Anaesthetist or there was warranted any investigation such as CT Scan or Angiography, or any vicarious liability of Balaji Hospital or there was instance of adequate timely care which would amount to gross-negligence on the part of accused.
(aq) Rather the defence that has been brought on by the accused herein proves their innocence qua any gross Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 331 of 345 negligence and they have brought enough material on record to prove their acquittal.
(ar) This Court has no hesitation in observing that the above three doctors herein should not have faced this trial for these 16 years as before filing the chargesheet, the evidence of their exoneration was already available in the form of findings of Delhi Medical Council. Further the misadventure on the part of investigative agency to file the chargesheet despite contrary to the guidelines of honourable Supreme Court of India when the concerned medical Council have already exonerated them is deprecated. The lack of courage on the part of investigative agency is apparent. The high handedness on the part of Dr. Kulbhushan Goel, Dr. L.M. Sharma and Dr. V.K. Jha cannot be ruled out. They went to the extent of giving their expert advise which they were not qualified or were legally and ethically mandated to. The conduct of Dr. L.M. Sharma to not only auto-nominate himself and that so adroitly and further to act against all the norms of principles of natural justice is outrageous.
(as) This case clearly reflects the blame mentality that is imposed upon doctors who give their best to secure the health of their patient and inevitable concomitant of complexities of modern healthcare system of present day but what one needs to learn is that every response to accident or unfortunate incident is not blame.
Case No. 528685/2016FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 332 of 345 (at) Modern medicine and in particular allopathy is highly effective. No surgeon or anaesthetist in any case, who doesn't have any conflict of interest, would not be expected that the underlying assumption of his services would not be with the intention to not to help the patient, but what seems to be outrageous in the present case was that investigative agency has imputed knowledge to the extent of homicide and book the accused herein under Section 304 IPC, which is lamentable.
(au) Though two medical boards were formed but only in vain that they have concluded the cause of death and the reason revealed was not consistent with the findings of the post-mortem. The strategy employed in the present case was to blame the person "holding the smoking gun" but the whole issue of sub mucus haemorrhage that was found in the abdomen region remained unnoticed. No reason was even entailed as to why no detailed examination was done with respect to it. PW1, PW2 & PW3 were victim of outcome and hindsight bias which cannot be ruled out. The attitude that "things have gone wrong and therefore somebody must be found to answer for it" is not appreciable and right approach.
(av) Blaming, denouncing and chastising is a part of human nature, but taking into consideration the social Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 333 of 345 utility of modern healthcare system, scapegoating the accused herein when Delhi Medical Council have exonerated them after following the due guidelines of Hon'ble Supreme Court of India is reprehensible.
(aw) Minor errors may sometime lead to out of proportion consequences and minor and unnoticed haemorrhage (sub mucus haemorrhage) may lead to an unfortunate consequence, but for that the one who holds the smoking gun will always be responsible is doubtful piece of wisdom.
(ax) Though the issue of causa causans had been dealt in detail but in complex system of medical healthcare operating upon the most complex human body, which is still to be unravelled, the tendency to hold up the last identifiable element in the chain of causation is not preferable. What human eyes may apparently see may also miss the cause at micro level. The enquiry undertaken may not go too far but it is only upon more mature reflection and detailed examination by a person of same speciality (i.e ENT Surgeon) can unearth the correct analysis as well as synthesis of the scope of the operation undertaken.
Case No. 528685/2016FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 334 of 345 (ay) It is important to quote directly from Error, Medicine and the Law by Allan Merry and Alexander McCall Smith, Cambridge University Press, P. 17, "Criminal justice focuses on the effects which wrongful conduct produces. These effects may sometimes be out of all proportion to the seriousness of the wrongdoing, and indeed may be a matter of chance or what in philosophical discussion is referred to as `moral luck'."
(az) This Court is not alien to the fact that strikingly emotive nature of this case wherein the child of such tender age met the cruel fate of death may make the attribution of blame irresistible but taking into consideration that medical knowledge is also of uncertain nature, the investigative agency foundational value must have been reason and rationality and mere perusal of landmark judgement as propounded by Hon'ble Supreme Court of India may have shown the way to light.
(ba) One of the assuring reasons that the doctors has been kept at different pedestal than the driver who commits negligence, as was vociferously raised up during arguments before this Court is very fact that Doctor in Operation Theatre not only owes duty to care but also intention to help while the driver on the street has no intention of help ingrained but only duty to care.
Case No. 528685/2016FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 335 of 345 (bb) Several questions were disallowed during cross examination which later were realised to have been relevant but questioning adversarial system is not the solution, though the rules of evidence and procedural rules indeed sometimes prevent the truth to come forth. What sometimes may appear scandalous may help to prove the mala fide on the part of the witness and expert witnesses also have their limitations as the medical field is so broad that a single expert could not answer every question authentically and credibly in different sub-speciality.
(bc) The hazardous manner in which the investigation was carried out and several items were not collected to support the alleged case of the prosecution and one of the blunder that was committed in forming the medical board and seeking the opinion over negligence was omission to include ENT surgeon. It was like soliciting the unconstitutionality of tax provision with non-tax lawyer (Tax Law is being referred as the present case was within the sub-speciality of otorhinolaryngology and to draw a reasonable corollary). It is not that non-tax lawyer is not law graduate (every member of the medical board dated 01.10.2004 and 14.10.2004 was even M.B.B.S. and though not ENT specialist and they were opining upon negligence in the field of otorhinolaryngology) but tax specialist would certainly understand the nuances and intricacies Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 336 of 345 better in determining unconstitutionality, though now the guidelines of Hon'ble Supreme Court has come to the rescue of doctors but this case has resulted into the shattering of careers.
(bd) One also is startled the way there was deliberate confirmation bias on the part of PW1, PW2, & PW3 and in particular on the part of PW2 wherein he took the assumption of Angiofibroma when already three doctors and biopsy report had confirmed adenoids. This also compels the Court to conclude that sometimes one tends to see what one expects to see, other than what is before one's eyes and it is always harder to see one's own mistake than that of someone else.
(be) Though no gross negligence could be found on the part of accused herein but every surgery would go smoothly and uneventful is not this Court could expect for always. One is compelled to quote from the book Error, Medicine and the Law by Allan Merry and Alexander McCall Smith, Cambridge University Press, and in particular Page 70.
"It follows that expertise is highly desirable. The ability of human beings to undertake complex activities is only possible because of the inherent properties of the human mind which facilitate the filtering and processing of Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 337 of 345 information, and allow rapid and skilled responses to difficult and dynamically changing challenges. Equally, many contemporary human activities are only possible on account of the social fabric of human society, which permits co-operation between individuals and allows knowledge and skill to be passed from one person to the next. These factors are manifest to a very high degree in an activity such as the practice of medicine. It would be quite impossible for doctors to function in their various and often concurrent roles as diagnosticians, advisers, technicians and counsellors if it were not for the way in which the human mind works, the way in which people interact, and the technology with which they can enhance their abilities. If the doctor had to start afresh from first principles every time a procedure was undertaken or a patient examined, little would get done. Some practitioners have honed their psychomotor and analytical skills to very high levels in order to undertake extremely difficult operations or other procedures on, for example, tiny babies or inform elderly patients. In doing this, they are in no small way like professional sportsmen whose natural ability has been developed by training and practice to produce a very high level of skill, although the range of activities and the theoretical knowledge involved in medical practice exceeds that in most sporting activities. Even top batsmen (for example) do get bowled out from time to time, and in the same way doctors occasionally fail to achieve the outcome they intended for a patient, Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 338 of 345 sometimes to the extent that injury or death is the result, instead of healing."
(bf) Upon appreciation of evidence, no skill-based error or error of judgement could be found. The accused no. 1 and 3 have categorically undertaken what reasonable Doctor in ordinary prudence would have done. Further every person / patient has its own variability though we are same at macro-level but slightly different at micro.
(bg) Though consumerist culture of modern times have raised the bar of blame culture and the higher the fee is charged, the greater the expectation of success. Though such mantra of success may find in client based approach, but the human body is not product of mere modern times and the chemical compounds which operate upon human bodies and reaction also remains the same for everybody will respond to in the same way at micro level is something which is remote. This is not to concede that one do not have the right to make fair and sensible complaint as it certainly goes a long way to maintain the quality and standard and is harbinger of checks and balance.
Case No. 528685/2016FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 339 of 345 (bh) Further this Court has no hesitation to hold that opinion of negligence on the part of PW1, PW2, PW3, PW4 & PW5 as furnished was not result of careful evaluation and analysis. Mere external observation do not go on to make doctors criminally liable. Their assessment must have included an ENT surgeon for holistic point of view upon negligence, if any.
(bi) One of the allegation that was imputed during the final arguments was with respect to the fact that "Bolam Test" is a vicious cycle wherein the standard is being judged by medical practitioners. Since medical practitioners are of same fraternity, one should not rule out "in-house protection scheme" i.e "You save me & I save you". Further since Delhi Medical Council office bearers are elected by the doctors who are registered with them, there is every likelihood of influence and pressure for exoneration of the doctors who may be anticipated to be prospective voters. However this Court do not thinks likewise.
(bj) Firstly, there is such a conspiracy of "in-house protection scheme" ever remains unsubstantiated or have ever been proved. Had it been such a case, why five doctors who were summoned as expert witness in the present case have deposed against the accused would be Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 340 of 345 incomprehensible. Further one should fall for Ockham's Razor than for Conspiracy Theory.
(bk) Secondly, the expert evidence brought forth are not only to furnish their opinion but are frequently asked about the medical literature and authentic text book upon which they have based their opinion. This itself is a methodology to verify the opinion and reliability.
(bl) Thirdly, in modern world, though knowledge had grown manifold at exponential rate, the access of Internet and library provides fertile ground for search of alternative views.
(bm) Fourthly, the access to any other opinion or alternate opinion, if it was held any other expert, can be summoned before this Court to depose to that effect.
(bn) Fifthly, it is not ruling of medical practitioner or the order of Delhi Medical Council that exonerates any doctor of its alleged medical negligence, rather it is standard of reasonableness as is assimilated in law duly judged that leads to conviction, acquittal or discharge.
(bo) Sixthly, though office bearers of Delhi Medical Council are duly elected, but the election is matter of choice rather than quid-pro-quo. Even otherwise, the members of the disciplinary committee who are nominated to enquire into the medical negligence are not elected officials, rather the experts in their respective field to give Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 341 of 345 their expert opinion, which is subjected to later scrutiny by other experts even.
(bp) Seventhly, the expert opinion furnished by experts are not unimpeachable assertions but to do away with any expert medical opinion, it has to be upon cogent reasons.
(bq) Eightly, in the view that two expert opinion which are contrary to each other has been brought before the Court, the one which is to be rejected has to be tested upon the pedestal of reason and authority i.e. authority of text book and research papers available as well as persuasiveness. It cannot be rejected per se but only upon valid cogent reasons. Court is not oblivion to everyday realities and the complex concepts of science are not ungraspable, rather enlightening and provocative. Further medicine is not only science , but is also an art.
(br) Ninthly, the Delhi Medical Council is rather a screening body duly enacted by an act of Parliament and whether Medical Bodies or Court, they are duly subjected to strict scrutiny of Hon'ble High Courts and Hon'ble Supreme Court of India. One may fail / succeed at one juncture but not at every juncture where by way of appeal, one would be subject to strict scrutiny and that also of very high degree as one approaches the another higher forum.
(bs) Lastly, every medical course has inherent aim of setting high standards and best possible practices. This benevolent intention cannot be ruled out.
Case No. 528685/2016FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 342 of 345 (bt) The emphasis upon the inclusion of ENT surgeon and its omission would go to the root of the matter and render it incredible can be well illustrated from the book Error, Medicine and the Law by Allan Merry and Alexander McCall Smith, Cambridge University Press, and in particular Page 191 "The reasonable practitioner standard undoubtedly requires of the doctor that he should not be out of date. This seems simple enough, but obviously a great deal depends here on what is meant by not being out of date. It will be impossible for any specialist to be aware of every development in his or her field. The volume of publications generated in every area of medicine today would make it humanly impossible for any person to read, or even to skim through, every report of every piece of research published in his field. Many practitioners may manage to keep up with two or three journals in their speciality and therefore to be familiar, at some level at least, with the matters reported in the columns of those journals. However, the mere reading of articles may be of limited use. What is really required is thoughtful evaluation of their contents and of their implications for practice. Given the level of research activity within all specialities today, this task will make major demands on the increasingly limited time of the practitioner."
(bu) The consequence of the current litigation where no gross negligence was found on part of all the accused and Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 343 of 345 even before the chargesheet was filed way back in 2007 by investigative agency and that too under Section 304 IPC and the Delhi Medical Council in compliance of the guidelines of Jacob Mathew Case (Supra) already had exonerated the accused. The unwarranted trial would have impact of climate of fear which would have acted deleterious to subsequent discharge of professional duties compounded by excessive stress on performance and trauma of litigation. This would have demoralising effect on the accused as well as to the fraternity which cannot be ruled out. This is not to state that doctors cannot be charged but within the framework as provided by Hon'ble Supreme Court of India. Cautious, prudent and reasonable conduct is always expected on the part of investigative agency which was wanting here. The ideal should have been that any case of criminal medical negligence should not escape from the clutches of penal law but every case of medical negligence which do not warrants criminal trial must be nipped in the bud. The matter of medical negligence involving civil liability only is quite another.
(bv) Therefore, no gross negligence is found on the part of accused no. 1. Dr. Anil Handa S/o. Sh. M. L. Handa, accused no. 2. Dr. Ravinder Kumar Gupta S/o Late Sh. Krishnan, and accused no. 3 Dr. Vivek Kumar Mangla S/o. Sh. Prem Narain and are hereby acquitted for the offence u/s 304-A IPC in the present case.
Case No. 528685/2016FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 344 of 345 (bw) All the accused persons are directed to furnish personal bond in a sum of Rs. 10,000/- each with one surety in like amount in compliance of provisions of Section 437-A of the Code of Criminal Procedure and is directed to be present before the Ld. Appellate Court as and when notice is served upon him.
(bx) File be consigned to the Record Room after necessary compliance.
Announced in the Open Court on 14.03.2023. Digitally signed by VAIBHAV VAIBHAV CHAURASIA CHAURASIA Date: 2023.03.14 17:31:41 +0530 (VAIBHAV CHAURASIA) Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi Certified that this judgment contains 345 pages and each page bears my signature.
Digitally signed by VAIBHAV VAIBHAV CHAURASIA
CHAURASIA Date: 2023.03.14
17:31:50 +0530
(VAIBHAV CHAURASIA)
Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi Case No. 528685/2016 FIR No. 615/2004 (Mangol Puri) State Vs. Dr. Anil Handa & Ors. Page No. 345 of 345