Karnataka High Court
Dr. Krishna Prasad vs State Of Karnataka on 30 November, 1987
Equivalent citations: II(1988)ACC423, ILR1988KAR923
ORDER Kulkarni, J.
1. The accused by this petition requests for quashing the proceedings in C.C. No. 832 of 1987 pending on the file of the Judicial Magistrate First Class, Puttur.
2. The material facts leading to the present case are as under
:-
The deceased Vasanti was the wife of the complainant Harischandra C.W. 1 who is working as P.S.I. S.D. Unit, Mangalore. The deceased Vasanti was married to the complainant Harischandra C.W.1 on 23-4-1984. The deceased was about 21 years old when she was married to the complainant Harischandra. She was pregnant by about 8 months by 28-12-1985. On 12-1-1986 the deceased's mother Mrs. Leelavathi and the deceased's father Purushothama Achar went to the complainant and took the deceased Vasanti to their house as it was her first delivery. The complainant Harischandra was getting his wife Vasanti examined at the hands of Dr. H.S. Somasekhar Rao of Vasudev Clinic of Mulki ever since she was carrying five months till she was taken by her parents on 12-1-1986. The said Dr. Somasekhar Rao, according to Harischandra, was opining that everything was alright. Even on 25-12-1985 Harischandra got his wife examined at the hands of a Gynaecologist Smt. Meera R. Kamath of Mulki. According to him, Dr. Smt. Meera R. Kamath told him that everything was alright. Even on 14-1-1986, the parents of the deceased had got her examined at the hands of Dr. K. Gopalakrishna Bhat of Uppinangadi who, in turn, had told them to take her to Bonanthay Krishna Bhat Memorial Hospital at Puttur. According to him, Dr.Vasanti attached to Bonanthay Krishna Bhat Memorial Hospital, on examining the deceased had told that every thing was alright with her. The said doctor had prescribed some medicines to the deceased. On 26-1-1986 at about 8-OOp.m. Vasanthi was taken by her parents to the said Nursing Home at Puttur as she started getting pains. Dr. Vasanti examined her and informed her parents that she would not have immediate delivery. She asked them to bring her the next day morning. Accordingly on 27-1-1986 at about 5-30 a.m. she was taken by her parents to the said Nursing Home. She was admitted to the said Nursing Home at about 6-00 a.m. on 27-1-1986. Dr.Vasanti was told about the said admission by Attender Shoba through phone. She was so admitted in the Nursing Home as per the words of the accused Dr. Krishna Prasad and Dr.Vasanti. At about 9-00 a.m. on that day, Dr.Vasanti and her brother the accused Dr. Krishna Prasad went to the Nursing Home and examined her and found her B.P. reading as 120/86. Her feet were slightly swollen. The child had fully developed. As the pelvis was very narrow, it was not possible for the child to move down through the pelvis, and the child was floating just above the pelvis itself. The neck of the uterus had become soft and had widened by about 2 fingers. It was not possible to push down the head of the child through the pelvis as the pelvis passage was very narrow. | But, however, Dr.Vasanti and her brother the accused wanted to wait and find out whether she would have a natural delivery. At about 10-00 a.m. on that day, chloromysetin injection of 2c.c. was administered to the deceased Vasanti. Again she was examined by Dr.Vasanti at about 1-00 p.m. and she found that Vasanti was getting labour pains once in four minutes and that pain persisted for about 45 seconds to one minute. She found that the head of the child was not still going into the pelvis passage. Vasanti made some attempts to push the head of the child into the pelvis passage but in vain. Hence she found that Vasanti would not have a natural delivery at all. She consulted the accused Dr.Krishna Prasad also in the matter. She and the accused Dr.Krishna Prasad came to the conclusion that in order to save the child and the deceased Vasanti, there was no other alternative but to carry out caesarean operation. The accused and Dr.Vasanti consulted the parents of the deceased Vasanti and told them that Vasanti would not have a natural delivery at all and that the only alternative to save the child and the mother was to carry out the caesarean operation. The parents of the deceased Vasanti gave consent to the operation. They also consulted Vasanti and she also gave her consent to the operation and they noted the consent of the deceased Vasanti and her parents in the case sheet. By about 1-30 p.m. the deceased was given one ample of Atropine injection in the labour room. The operation theatre was got ready. By about 2-30 p.m. Vasanti was taken from the labour room to the operation theatre. Dr.Vasanti and the accused got themselves ready to carry out the operation. At that time, the Attenders Lakshmi, Shoba, Yashoda and Shankari were also present in the hospital. Dr. Malati, wife of the accused, was also present in the operation room. Dextrotyle M. drips were being given to the deceased by putting the needle in the vein of the left hand. By about 3-00 p.m. they wanted to carry out the operation by giving local Anaesthesia as they thought that general Anaesthesia would affect the child. Accordingly the accused gave Spinal Xylocaine of 1.2 c.c. to the spinal cord in order to give local Anaesthesia. Within two minutes after giving the said injection, the blood pressure began to fall down suddenly. As the blood pressure began to fall down suddenly, the accused hastened the drips and 1 c.c. of Betnesol injection was given by Dr.Malati to the deceased. Immediately thereafter 1/4 c.c. of Mephentine injection was given to Vasanti. Immediately oxygen was also given. With all the efforts, the blood pressure did not come up at all. Again one more Intravenous Betnesol injection of 2 c.c. was given. With all the efforts, the blood pressure did not come up. The accused examined the deceased and found that her heart had stopped beating. Immediately he gave 1 c.c. of Adrenaline injection to the heart. It was of no use. The accused carried out external cardiac massage for nearly 10 minutes and that was also of no use. The deceased Vasanti was found dead by then. The accused and Dr.Vasanti came out of the operation theatre and told the parents of the deceased about the death of Vasanti on the operation theatre. Thereafter the deceased's husband-complainant Harischandra was informed about the death of Vasanti. Thereafter the complainant-husband gave an application dated 8-3-1986 to his superiors alleging rashness and negligence against the accused. A report was called for by the superior police officers. Ultimately a case was registered against the accused on 14-3-1986 for the offence under Section 304A I.P.C.
3. The police after registering the case recorded the statements of C.Ws. 1 to 16 and drew up some mahazars and ultimately laid a charge sheet against the accused for the offence under Section 304A I.P.C.
4. The accused was served with the summons in the said case. He has come up with the present revision under Section 482 Cr.P.C. for quashing the proceedings.
5. The learned Government Pleader Shri Jadhav submitted that the accused was criminally negligent in not giving a test dose to the patient and that the accused was not an Anaesthetic expert and hence he ought not to have given the injection in question. On the other hand, the learned Counsel Shri Chouta for the petitioner submitted that what all best could be done under the circumstances had been done by the accused and it was only a case of misfortune or ill-luck. According to Shri Chouta, even if all the materials collected by the investigating agency are taken into consideration, the material on record was not even remotely sufficient even to raise a suspicion or to prove criminal rashness or negligence against the accused.
6. Section 304A I.P.C. reads as :-
"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."
It is unfortunate that the dead body of Vasanti was not subjected to post mortem examination and that the organs of the body were not subjected to histo-pathological examination at all. That she died in the operation theatre, cannot be disputed at all. What is the exact cause of death would have been very well found out if the post mortem examination over the dead body was conducted or if histo-pathological examination of organs of her body had been conducted. Whether she died due to the administration of the injection known as Spinal Xylocaine or whether she died due to some other reasons, cannot be made out at this stage at all.
7. The materials on record go to show that the pelvis passage was extremely narrow and the head of the child was not coming down through that passage and the child was floating over the pelvis region itself. Whether she died on account of the shock caused to her by the child not coming into the pelvis region or on account of some other reason or on account of the administration of the said Spinal Xylocaine injection, cannot be made out at this stage at all. The necessary material like the post mortem examination and the histo-pathological examination which ought to have been resorted to by the investigating agency, has not been collected in this case in order to show as to what was the real cause of death of the deceased. It is no doubt true that immediately after the administration of the Spinal Xylocaine injection, the blood pressure started to fall down and she also died within a few minutes thereafter. Therefore one of the reasons for the death, according to the prosecution, was the administration of the injection. But the possibility of other causes being responsible for her death, cannot be ruled out at all. Thus, the investigating agency in this case, in my opinion, has failed to collect sufficient material to show as to what was the exact cause of death.
8. The materials i.e. the various statements of the complainant Harischandra and the deceased's parents Purushothama Acharya and Leelavati, C.Ws.2 and 3, and the Attender Shoba C.W.4 and another Attender Lakshmi C.W.5 and another Attender Shankari and another Attender Yashoda and Dr.Vasanti and Dr.Malati and others would show at the most that the deceased was admitted for delivery in the Nursing Home of the accused at about 5-30 a.m. or 6-00 a.m. on 27-1-1986 and that Atropine injection was given and thereafter Dextrotyle M. drips were given and thereafter in order to have local Anaesthesia Spinal Xylocaine was given and that when the blood pressure began to fall suddenly, drips were accelerated and 1 c.c. Betnesol injection was given and thereafter 1/4 c.c. Mephentine injection was given and thereafter again Betnesol injection of 2 c.c. was administered and thereafter in order to give some impetus to the heart, 1 c.c. of Adrenaline injection was also given and even external massage was carried out. All these attempts made by the accused and his colleagues Dr.Malati and Dr.Vasanti proved ineffective.
9. It is no doubt unfortunate that the young deceased Vasanti who was hardly 21 years or 22 years old and who was carrying for the first time, died in the operation theatre The death on the operation table by itself is not sufficient to prove rashness or negligence against the accused person. What appears from the statements of these witnesses is that the deceased might have died on account of administration of Spinal Xylocaine injection. That Spinal Xylocaine injection is given in order to bring about local Anaesthesia, is not disputed. It is not disputed that the administration of general Anaesthesia would have proved more harmful to the patient and the child. Therefore it appears that the best Anaesthesia that could be administered under the circumstances was the local Anaesthesia by administering the Spinal Xylocaine.
10. The accused as can be seen from the charge-sheet itself possesses M.B.B.S., and F.R.C.S. Degrees and certificates. The material on record goes to show that he has been practising Surgery since the last 20 to 25 years. Therefore it appears that he is an experienced Surgeon and also an expert in Surgery. He has been running the Nursing Home in question ever since 1972. Therefore it cannot be said that the accused was a novice or an inexperienced Surgeon. Dr.Vasanti is M.B.B.S. D.G.O. Dr.Malati has passed M.B.B.S. Examination from Mysore University. Both these lady doctors also have been practising in that Nursing Home since the last so many years. Dr.Vasanti has got a Diploma in Gynaecology and Obstetrics. She is also an experienced Gynecologist and Obstetrician. Therefore it is not a case of treatment given by inexperienced and novice doctors.
11. As already stated above, the death in all probability might be due to administration of Spinal Xylocaine injection which was given in order to bring about local Anaesthesia.
12. Rashness and negligence are not the same things. Negligence cannot be construed to mean rashness. There are different degrees of negligence and rashness. In order to amount to criminal rashness or criminal negligence one must find out that the rashness has been 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 to be occasioned thereby. The criminality lies in running the risk or doing such an act with recklessness and indifference to the consequences.
13. The learned Authors Shri Ratanlal and Dhirajlal in Law of Crimes, 22nd Edition, have stated on page 810 as :-
"The question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Moreover, in applying the above criterion it is necessary to avoid being influenced by the prejudice arising out of the loss of a life which is so dominant a factor in accident cases. The distinction between the negligence which is sufficient ground for a civil action and the higher degree which is necessary in criminal proceedings is sharply insisted on in several cases. In criminal cases, the amount and degree of negligence are the determining factors. There must be mens rea in the criminal negligence also. In order to establish criminal liability the facts must be such that the negligence of the accused sent the case beyond a mere matter of compensation and showed such disregard for the life and safety of others as to amount to a crime. Simple lack of care such as will constitute civil liability is not enough."
The learned authors Shri Ratanlal and Dhirajlal in Law of Crimes, 22nd Edition, stated in clear and unambiguous terms on page 812 as :-
"The duty of a medical man, who undertakes the treatment of a patient, is to use a fair and reasonable standard of care and competence. Before a medical man can be held criminally responsible for the death of his patient, the prosecution must prove all matters necessary to establish civil liability, except pecuniary loss, and in addition must prove negligence or incompetence on his part which went beyond a mere matter of compensation between citizens and showed such disregard for the life and safety of others as to amount to a crime against the State. Where a doctor prepared an injection by dissolving some powder in water which he gave to fifty-seven children of whom five died and others were made ill, it was held that negligence, to be criminal, must be gross and that the only negligence on which reliance could be placed being the single act of dissolving the powder in water, a criminal degree of negligence had not been proved merely because too strong a mixture had once been dispensed and a number of children made gravely ill."
The learned author Shri Nelson in his l.P.C. 7th Edition (1983 edition) has stated on page 1144 as :-
"Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in the circumstances which show that the actor has not exercised the caution, incumbent upon him, and that if he had, he would have had the consciousness. The imputability arises from the neglect of the civic duty of circumspection. It is manifest that personal injury, consciously and intentionally caused, cannot fall within either of these categories which are wholly inapplicable to the case of an act or series of acts, themselves intended, which are the direct producers of death. Following this, in the well-known case of EMPRESS OF INDIA v. IDU BEG (I.L.R. 3 All 776), Straight, J. observed :
"Criminal rashness is hazarding a dangerous or wanton, act with the knowledge that it is so and that it may cause injury, but without intention to cause injury or without knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally, or to an individual in particular, which, having regard to all the circumstances, out of which the charge has arisen, it was the imperative duty of the accused person to have adopted."
The learned Author has further stated on the same page as :-
"When one does an act with utter indifference to the consequences, of which the doer may be conscious and which, he knows, may not take place, one is said to be rash while criminal negligence is neglect to take that precaution which a reasonable and prudent person is expected to take under the circumstances obtaining in a given case."
The learned author has further stated on page 1145 as :-
"Negligence is the failure to take reasonable care and the degree of the reasonable care is not to be measured by any abstract standard. Negligence does not mean absolute carelessness or indifference, but want of such a degree of care as is required in particular circumstances."
14. In Dr.Sir Hari Singh Gour's Penal Law of India, 10th edition, it is stated on page 2723 as :-
"This Section, then, does not apply to cases in which there has been a voluntary commission of an offence against the person. If a man intentionally commits such an offence, and consequences beyond his immediate purpose result, it is for the Court to determine how far he can be held to have the knowledge that he was likely, by such act, to cause the actual result. If such knowledge can be imputed, the result cannot be attributed to mere rashness : if it cannot be imputed, still the wilful offence does not take the character of rashness, because its consequences have been unforeseen."
15. In this case, as already stated above, the accused and his two colleagues Dr.Malati and Dr.Vasanti have treated the patient first by administering Atropine injection and thereafter they gave Dextrotyle M. drips and thereafter only they gave Spinal Xylocaine injection in order to bring about local Anaesthesia. What best could be done by any reasonable doctor was done by them from the very beginning itself. The administration of Atropine injection and the administration of Dextrotyle M. drips and Betnesol injection as precautionary measures can only be attributed to the fact that the doctors wanted to take and took all precautionary steps to save the child and the mother. The administration of 1.2 c.c. of Spinal Xylocaine cannot be considered to be an excessive dose at all. It is the most minimum that is required to be given in order to bring about local Anaesthesia. When after the administration of Spinal Xylocaine the blood pressure began to fall the drips were accelerated. Thereafter 1 c.c. of Betnesol injection was given. Thereafter 1/4 c.c. of Mephentine injection was given. Thereafter even oxygen was administered. Thereafter again 2 c.c. of Betnesol injection was given. When the blood pressure did not pick up at all, the accused doctor administered Adrenaline of 1 c.c. to the heart in order to activate the heart. Even that proved ineffective. He even did external cardiac massage for nearly 10 minutes. All the said treatment given to the deceased by the accused and his colleagues would go to show what best could be done even by any eminent expert in our Country was done by the accused in this case. It might be unfortunate that the patient died. It cannot be said that the accused did not take proper, precautionary and reasonable steps at all. The consequences were unforeseen and were unpredictable. These are all the injections which would be given by any doctor and all of them were given to her. Therefore though the consequences are unfortunate, they are still unforeseen.
16. The accused has undertaken a fair and reasonable standard of care and competence. It is not the case of the prosecution that the accused was an incompetent Surgeon and that the treatment given in this case to the deceased would not have been given by a competent doctor. Therefore the material on record would clearly go to show that the accused and his two colleagues did their best in the matter to save the child and the mother and gave the best treatment possible under the circumstances. But unfortunately for them and unfortunality for the deceased, the consequences which were unforeseen and which could not be predicted, brought about the unfortunate death. One should not be carried away by the unfortunate death. What is to be seen in the case is whether proper, fair and reasonable treatment was given by the accused and his colleagues to the deceased. If proper, reasonable and fair treatment is given and if still the death has ensued, the death cannot be attributed to any imaginary rashness or negligence on the part of the accused. It is not the prosecution case that the treatment given by the accused and his colleagues is not the one which any reasonable Surgeon or doctor would have given in such cases. It is not even the prosecution case that any other better treatment could have been given. Therefore, under these circumstances, the materials on record collected by the police would themselves go to show that the accused and his two colleagues gave a fair, proper, reasonable and competent treatment to the deceased in their anxiety to save the child and the mother. But the consequence was disastrous, unforeseen and unpredictable and for that unforeseen and unpredictable death the accused cannot be accused of being rash or negligent in the treatment. Therefore, under these circumstances, the material on record does not even remotely indicate that the accused did anything rashly or negligently so as to endanger the life of the deceased Vasanti. But, on the other hand, the materials on record go to show that the accused and his two colleagues gave the most proper, fair, competent and reasonable treatment and gave the treatment which could be given by any competent person. The death of the deceased cannot be said to be the result of any rash or negligent act on the part of the accused doctor and his colleagues. Therefore the materials on record do not even remotely indicate the commission of an offence under Section 304A I.P.C.
17. The learned Government Pleader urged that a test dose ought to have been given by the doctor. The test doses are resorted to by the doctors when certain medicines just like pencillin and sulpha might bring about shock and allergy to the patients. It is a common local Anaesthesia known as Spinal Xylocaine that is normally given to all the patients when carrying out surgery in order to bring about local Anaesthesia. Shocks by the administration of such doses are one in lakh or so. Merely because one in a lakh cases bring about disastrous results, it does not mean that the non-giving of the test dose was an indication of rashness or negligence. If the deceased was allergic to Spinal Xylocaine, the administration of even a test dose would not have made any difference in the situation. A negative result even after a test dose does not ensure satisfactorily that the disastrous consequences would not have ultimately followed. The learned Government Pleader Shri Jadhav submitted that the accused was at liberty to urge all these points before the Magistrate by filing an application under Section 258 Cr.P.C. It would be a sheer waste of public time and energy. What can be done at the earliest stage need not be postponed by saying that the same point can be urged before the Magistrate. Therefore, under these circumstances, the said argument is rejected.
18. The learned Government Pleader Shri Jadhav urged that neither the accused nor his two colleagues were competent Anaesthetists. The accused is M.B.B.S. and F.R.C.S. Dr.Vasanti is M.B.B.S, D.G.O. Dr.Malati is M.B.B.S. It is no doubt true that nowadays Diplomas and Post Graduate degrees in Anaesthesia are open to the candidates. But it does not mean that the persons holding Degrees like M.B.B.S., F.R.C.S., D.G.O., are not qualified to administer Anaesthesia. Therefore the said argument is also rejected.
19. Thus, in the result, the petition is allowed. All the proceedings initiated by the police in this case and the proceedings in C.C. No. 832 of 1987 pending on the file of the Judicial Magistrate First Class, Puttur, are quashed.