Delhi District Court
State vs K C Goel on 5 November, 2009
Page 1 of 17
IN THE COURT OF SH. SATISH KUMAR ARORA: MM KKD COURTS DELHI
FIR No. 216/99
PS Kalyan Puri
U/s 338 IPC
State V/s K C Goel
JUDGMENT:
a Sl No of the Case : 02402R 0090102002
b Date of Institution of case : 22.02.02
c Date of Commission of Offence : 22.08.99
d Name of the complainant : State
e Name of the Accused & his : Dr. Kesari Chand Goel
parentage & address s/o Ram Avtar Goel
r/o 103 B, Pocket B, Mayur Vihar,
Phase 2, Delhi
f Offence complained of : U/s 338 IPC
g Plea of the Accused : Pleaded not guilty
h order reserved on : 05.10.09
i Final order : Acquitted
j Date of such order : 05.11.09
Brief reasons for the decision of the case.
1. Prosecution case, in brief, is that on 26.08.99, PW 3 Allan Khan came to the PS Kalyan Puri and lodged his complaint Ex. PW3/A. As per the said complaint, daughter Shahana of the complainant was having mild cough and cold and for her treatment went to the private clinic of the accused Dr. K C Goel. She was given some medicines and was also administered an injection on her right buttock region. When she came back to her home, she felt irritation on her back and also found blue spots Page 2 of 17 near the injected region. She again went to the clinic of the accused with her sister/PW 2 Sunhera where she was again given an injection and some medicines. Despite taking the medicines, she showed no signs of improvement rather her condition started deteriorating. She was again taken to the private clinic of accused from where she was referred to the LBS hospital. At the LBS hospital, she was turned back as there was no treatment available for her condition. Thereafter, she was taken to Ervin Hospital where she was given some treatment, however she was later on shifted to the Safdarjang Hospital where she was finally treated and operated upon. On the complaint, PW10 SI Udai Kumar prepared the rukka Ex. PW10/A and got the case FIR registered and proceeded to the spot for investigation. During the course of investigation, he prepared the site plan Ex. PW10/B at the instance of the complainant. He further went to the Safdarjang Hospital where he recorded the statement of patient/injured Shahana and also took the treatment papers in his custody. Thereafter, accused was arrested and personally searched and finally on completion of investigation, challan was presented to the court against the accused for trial. It may be noted here that complainant Allan Khan also filed a complaint u/s 200 Cr.P.C against the accused. On the complaint, cognizance of the offence u/s 200 Cr.P.C was taken and complainant, injured and other witnesses were examined. Vide order on summoning dated 18.09.2001, accused was summoned for offence punishable u/s 338 IPC. As challan for the same offence was filed on 22.02.02, vide order dated 07.03.02, the said complaint case was clubbed with the present state case.
2. On the appearance of the accused, copy of the chargesheet/documents was supplied and after hearing the parties, notice u/s 251 Cr.P.C for the offence punishable u/s 338 IPC was given to the accused to which he pleaded not guilty and Page 3 of 17 claimed trial. Thereafter, matter was listed for prosecution evidence.
3. To substantiate and prove its case, prosecution has examined ten witnesses. PW1 Shahana is the patient/injured. PW2 Sunhera is the sister of the patient/injured who accompanied her to the clinic of the accused. PW3 Allan Khan is the complainant. PW4 ASI Ved Prakash is the DO who on 30.08.99 recorded the case FIR Ex. PW4/A. PW 5 Dr. Nahid Fatima on 26.08.99 examined the patient/injured PW1 Shahana in Casualty Ward B of Safdarjang Hospital. It may be noted here that examination in chief of PW5 was deferred for want of treatment papers. Thereafter, as PW5 was not traceable, her examination in chief could not be completed. The part testimony of PW5 Dr. Nahid Fatima, therefore, cannot be read in evidence for or against prosecution. PW6 is Dr. Dinesh Bhatnagar. PW7 is Dr. R S Mohil who has treated and operated the patient Shahana at Safdarjang Hospital. PW8 is Ct. Rajender Kumar who has joined the investigation with the IO SI R K Jha on 26.7.01. PW9 SI R K Jha and PW10 SI Udai Kumar are the IO's of the case.
PW1 Shahana in her chief recorded on 30.06.02 testified that about three years before, in the month of August, she was working in a factory for the job of stitching. She testified that she felt pain in her right rib cage area and was also having mild fever. She along with her sister Sunhera went to the clinic of accused, which was near Khichri Pur bus stand, where she was given some medicines and an injection was also administered by the accused on her person. She testified that when she came back to her house, she noticed that blue spots have developed on the portion of her skin where injection was given. She was also feeling irritation on the said portion of her skin. She further testified that she again went to the clinic of accused where she was again administered an injection and was given two medicines. Instead of having any improvement, her condition started deteriorating. On the same date, in Page 4 of 17 the evening, when she again went to the clinic of accused she was refused to be treated upon by the accused and was turned back. On next day, she alongwith her sister and father went to the LBS hospital from where she was referred to Ervin Hospital. She testified that when she was under treatment at the Ervin Hospital, accused called her father and asked him to bring her to his clinic for treatment. She was taken to the clinic of the accused where three doctors present there medically examined her and advised her to be taken to the Safdarjang hospital for further treatment. She further testified that thereafter she was taken to the Safdarjang hospital in an unconscious condition where she was operated three times and was also put to blood transfusion. She further testified that she remained at the Safdarjang hospital for about four to five months before being discharged from the hospital. She further testified that at the time of her treatment, she was earning Rs. 3000/ per month and due to her ill health, her husband had also left her. She testified that accused is responsible for her ill health and condition. In her cross examination by ld. defence counsel, she testified that it was her parents who have gone to the PS for lodging complaint. She denied the suggestion that it was the assistant of accused who had administered the injection on her person. She further testified that no prescription slip was given to her by the accused for her treatment. She further testified that when she was present in the clinic of accused there was no other patient. She further testified that at the LBS Hospital, no medical treatment papers were prepared as she was directly referred to Ervin Hospital. She further testified that neither at the Ervin Hospital nor at the SJ Hospital, she was given an injection. She denied the suggestion that accused has been falsely implicated so as to extort money from him.
PW2 Sunhera in her chief recorded on 03.12.02 testified that about three years Page 5 of 17 before, her sister Shahana complained mild fever and chest pain. She was taken to clinic of the accused where she was given an injection and some medicines. She further testified that at the house, Shahana reported some spots and irritation on her skin where injection was administered. In the evening, she was again taken to the clinic where she was again given an injection and some medicines by the accused. As she was having no relief, she was again taken to the clinic of the accused on the next day from where she was turned back without any treatment. She testified that thereafter she alongwith her father took her sister Shahana to LBS hospital from where she was referred to Ervin Hospital. At the Ervin Hospital, Shahana was given some treatment, however on the asking of the accused she was taken back to the clinic where she was medically examined by some other doctors who then advised her to be taken to the SJ hospital for further treatment. She further testified that at the SJ hospital, the doctor informed that the skin of her sister Shahana, where injection was given, has damaged and is to be operated. She further testified that right leg of her sister has been rendered ineffective and her sister is not even able to perform the daily chores of the day. She further testified that husband of her sister has divorced her and she was alone living with her minor daughter. She further testified that due to wrong treatment given by the accused, her sister has suffered injuries on her leg. In her cross examination by ld. defence counsel, she testified that it was her father who had gone to the PS. She further testified that in her statement given to the police she has stated that her sister was suffering from chest pain and mild fever, which was not so recorded in her statement Ex.PW2/DA. She further testified that the blue spots on the person of her sister Shahana were seen in the evening and she was again taken to clinic of the accused in the evening itself. She further testified that no prescription slip was given by the accused for the treatment given to her sister. She denied the Page 6 of 17 suggestion that to extort money from accused, he has been falsely implicated.
PW3 Allan Khan is the complainant who in his chief has broadly reiterated as to giving of wrong treatment to his daughter Shahana by the accused and further as to her corrective treatment at SJ Hospital. In his cross examination by ld. defence counsel, he testified that initially his daughter Sunhera accompanied his daughter/patient Shahana to the clinic of accused. On the next visit, his daughter Rehana and Sunhera accompanied his daughter/injured Shahana to the clinic of accused. He denied the suggestion that accused has been falsely implicated so as to extort money from him.
PW6 Dr. Dinesh Bhatnagar in his chief testified that on 3.09.01, he was working as Consultant Surgery at SJ Hospital. He testified that on the said day, he was shown relevant medical documents of patient Shahana wherein he found that the opinion has already been given by Dr. R S Mohil.
PW7 Dr. R S Mohil in his chief testified that on 26.8.99, patient Shahana was admitted to SJ Hospital with extensive necrotising fascitus of right thigh. He further testified that as per history of patient, she was administered some injection. He further testified that he treated the patient with fascistomy and debridement of non viable tissue with excision of dead muscles mass from right glutael region on 27/28.8.99 followed by split thickness graft of skin on 28.12.99 and 09.02.2000. He further testified that during her treatment, patient was given antibiotics and was also put on blood transfusion. He further testified that the patient was discharged on 24.02.2000 and that time she was stable, however not completely cured. He further testified that he had given a medical report as per his observations and as per the history of the patient that she was given injection on the involved area. He further testified that patient had infection and extensive gangerene of the skin and sub Page 7 of 17 cutaneous infection in right buttock and thigh. In his cross examination by ld. defence counsel, he testified that he cannot tell the name of the person who gave the injection to the patient.
PW8 Ct. Rajender Kumar in his chief testified that on 26.07.01 he joined the investigation with the IO SI R K Jha and in his presence, IO arrested and personally searched the accused vide memo's Ex. PW8/A & B respectively. Nothing material has come in his cross examination.
nd PW9 SI R K Jha is the 2 IO of the case and in his chief testified that on 02.04.2000, he was handed over further investigation of the present case. During the investigation, he collected the discharge summary slip of the patient/injured Shahana from SJ Hospital, recorded the statement of patient/victim Shahana, her sister Sunhera and of the complainant Allan Khan. He further testified that he also made inquiry from the accused and in pursuance to that, accused handed over to him documents which are photocopies and are mark A, B and C respectively. He further testified that thereafter he sought the opinion from the SJ Hospital regarding the treatment given by the accused and the report Ex. PW6/A was given. He further testified that he also collected the medical report Ex. PW7/A given by Dr. R S Mohil. He further testified that on 26.07.01, he arrested the accused and also collected the Registration Certificate of Medical Counsel of India issued in the name of accused and also the copy of his MBBS degree. Nothing material has come in his cross examination.
st PW 10 SI Uday Kumar is the 1 IO of the case and in his chief testified that on 26.08.99, he was handed over the complaint for inquiry and investigation. He testified that on receiving the complaint and on making preliminary inquiry, he got the case FIR registered u/s 337 IPC on 30.08.99 against the accused. He further Page 8 of 17 testified that during investigation, he prepared the site plan Ex. PW10/B at the instance of complainant and also went to the SJ Hospital where he recorded the statement of patient/victim Shahana. He also took into his possession the medical treatment papers pertaining to the victim Shahana. He further testified that on 12.09.99 as he was transferred, he deposited the case with the MHCR PS Kalyan Puri. In his cross examination by ld. defence counsel, he testified that he received the complaint on 26.08.99 and just after that he went to the clinic of the accused which was found shut. He further testified that on 30.08.99 at about 9.00 pm he again visited the clinic of the accused and found it closed. He further testified that whenever he visited the clinic, he found it closed.
4. In his statement recorded u/s 313 Cr.P.C, accused denied the prosecution case in its entirety and further stated that he has been falsely implicated and he had not given any treatment to the patient Shahana. He also stated that, in fact, few persons visited his clinic out of which two were in drunk condition and asked him to visit jhuggi of Shahana who was not well and was till then given treatment by some quack in JJ cluster. He further stated that due to inadequacy of facilities at his clinic, he refused to go with them and advised to take the patient to the nearby LBS hospital. He further stated that they all left with the warning that they will see him. Accused has preferred not to lead evidence in his defence.
5. Heard the Ld.APP for the state and ld. defence counsel and perused the record carefully. Ld. APP contends that there is sufficient evidence on record so as to suggest that the injuries suffered by patient Shahana on her person was due to wrongful treatment given by the accused. Ld. defence counsel, on the other hand, contends that merely because the patient has suffered some injury due to the alleged treatment given by the accused, it cannot be said that the alleged treatment was Page 9 of 17 wrongful. He further contends that mere giving of an injection on the person of patient and consequent infection cannot itself lead to the conclusion that accused is responsible of giving wrong treatment. He further contends that there is no medical opinion available on record so as to suggest that the infection resulted on the person of patient Shahana was due to wrongful treatment given by the accused. He further contends that accused is having the requisite professional skill and competency and merely because the patient has developed post injection complications, it cannot be said that the said complications resulted due to the wrongful act of accused. He, thus, contends that prosecution evidence is not sufficient enough so as to lead to the conclusion of culpability of accused for the offence punishable u/s 338 IPC.
Before taking up the respective submissions, the relevant substantive provision and the law laid down can be looked into. Sec. 338 IPC deals with causing of grievous hurt by an act endangering life or personal safety of others. It lays down, "whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment ..........". The stress u/s 338 IPC is on the words "rashly or negligently". An act which is neither done rashly or negligently will not fall u/s 338 IPC even when such act is endangering the life or personal safety of others, however such act should be without mens rea of causing injury. Further, the negligence associated with medical act/field has been further categorized. The relevant law laid down is to be found in the judgment of Hon'ble Supreme Court of India delivered in Jacob Mathew vs. State of Punjab, (2005) 6 SCC 1 wherein after taking note of and explaining the jurisprudential concept of negligence, it was held that "the criminal law has invariably placed the medical professionals on a pedestal different from ordinary mortals. The subject of negligence in the context of medical profession necessarily Page 10 of 17 calls for treatment with a difference". After reviewing the Indian decisions on criminal negligence, the following points were concluded:
(a) negligence is the breach of 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. 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'.
(B) Negligence in the context of 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, Page 11 of 17 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.
( C ) 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. (D) The test for determining medical negligence as laid down in Bolam's case hold good in its applicability in India.
(E) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not be necessarily 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 of prosecution.
(F) The word 'gross' has not been used in section 304 A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high Page 12 of 17 degree as to be 'gross'. The expression 'rash or negligent act' as occurring in section 304 A of the IPC has to be read as qualified by the word 'grossly'. (G) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent; (H) 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.
Reference can also be made to the judgment of Hon'ble Supreme Court of India delivered in Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee, 2009 (4) R.C.R (criminal) 1(SC) wherein after referring to its earlier judgment in Jacob Mathew's case, it was held that "while judging the individual liability of the doctors and hospital in cases of medical negligence or deficiency in service, the following principles must be born in mind by the courts :
(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.
(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 Page 13 of 17 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 the best of his ability. Taking note of the aforesaid principles as laid down by the Hon'ble Supreme Court and applying it to the fact of the present case, I am of the opinion that the accused is not guilty of criminal negligence so as to attract the provision u/s 338 IPC. The reasons for the said opinion may be stated as herein under: (A) It is an admitted fact that in the present case PW1 Shahana, the patient injured was administered an injection on her back/buttock region by the accused on her reporting of mild fever and chest pain. It has come on record that patient Shahana developed post injection complications for which she was finally treated and operated upon at the SJ Hospital.
(B) It has further come on record that the resulted injury has caused severe hardship to the patient injured in the sense that one of her leg has been rendered almost incapable and she has also suffered at her personal level as her husband has divorced her. At the inception of trial and even at the stage of recording the statement u/s 313 Cr.P.C, stand of the accused was that he has not administered any injection to the patient injured Shahana and in fact she was under treatment of some quack in the JJ locality of patient injured. However, during the course of final arguments, it was admitted by ld. defence counsel as well as accused that the patient was administered Voveran injection as she reported mild fever and chest pain and this was the treatment which could have been given by any other doctor possessing requisite professional skill. Further, it was the defence of the accused that the said Page 14 of 17 injection was not administered without due care and caution. It was further the defence that whatever complications the patient has developed were not on account of any wrongful treatment but on account of her body's response to the injection owing to poor immunity and personal hygiene. It is, thus, clear from the submissions that the following facts have emerged undisputed:
(a) that the patient injured Shahana was administered an injection by accused doctor;
(b) she developed post injection complications; and
(c) she was treated and operated upon for the said complications at SJ Hospital.
Now, coming on to the testimony of patient injured, her sister/PS2 Sunehera and her PW3 father Allan Khan and the doctor PW7 Dr. R S Mohil who has treated the patient at the SJ Hospital, it is apparent that neither from the testimony of patient injured and her relatives nor from the testimony of the doctors who treated the injured at the SJ Hospital, it is decipherable that the injection administered by accused doctor on the body of the patient injured was administered without due care and caution. There is no report on record by any medical expert/witness that the complications developed on the body of the patient was on account of wrongful treatment given by the accused doctor. Merely because the patient has developed certain complications resulting in grievous injury on her person cannot by itself lead to the conclusion that the accused doctor is guilty of medical negligence amounting to criminal negligence. It is now well established that word 'negligence' has been qualified by the word 'gross' in case of medical negligence falling within the domain of criminal negligence. As is evident from the case before hand, there is nothing to suggest that accused doctor was criminally negligent in administering the injection on the body of the patient. The accused doctor may be culpable of negligence falling within the domain of civil law but as is evident from the evidence which has come on Page 15 of 17 record, he is not guilty of criminal negligence. Patient has been administered an injection and there is no report by any of the medical witness examined by the prosecution that before administering the injection, accused doctor was to follow certain precautions or was to adopt a certain specific course of treatment.
I may here also refer to the judgment of Hon. High Court of Andhra Pradesh delivered in Dr. M Raghava Rao vs. Oruganti Buchireddy, 2006 Cri.L.J 3087 wherein while allowing the petition for quashing of the criminal case proceedings against the petitioner in a case where it was alleged that the patient died due to administering of an injection by the petitioner doctor, it was held that "to constitute negligence against the doctor, simple lack of care and error of judgment or an accident is not enough. So long as a doctor follows a practice acceptable to the medical profession of that day, whether or not the doctor did not possess the requisite skills or did not exercise his skill with reasonable competence, for an act amounting to criminal negligence, the negligence should be much higher i.e., gross or of a very high degree. It must be shown that the accused did something or failed to do the same which can in such circumstances, no medical professional in his ordinary sense and prudence would have done or failed to do.
I may also here refer to the judgment of our Hon. High Court delivered in Dr. Ritu Rawat vs. Tej Singh, 2009(1) A.D(Delhi) 335 wherein after referring to the judgment of Hon. Supreme Court delivered in Jacob Mathew's case, it was held that "the threshold of behavior which would amount to criminal negligence is not mere in action or omission, or some error of judgment, but something greater. The doctor who may be held liable in tort, or under consumer law, may yet not be charged for criminal negligence, on account of this higher standard of culpability insisted upon by decision rendered in Jacob Mathew's case. It was further held that "to establish medical Page 16 of 17 professional negligence under criminal law, it has to be demonstrated that accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary sense or prudence would do or fail to do. In order to have a medical professional negligence, therefore, the act of the accused doctor should be of such a nature that the injury which resulted was most likely imminent.".
Thus, it is abundantly clear from the perusal of the aforesaid authorities that in the present case the accused doctor has not done something or has not failed to do something which in the given set of facts and circumstances, no medical professional in his ordinary sense or prudence would have done or would have failed to do. The patient Shahana has approached the accused doctor reporting mild fever and chest pain. She was administered an injection and was given some medicines. This giving of injection and medicines can in no way suggest that the accused doctor has done something which other medical professional in such like circumstances would not have done. Further, there is no medical report which has come in the prosecution evidence so as to suggest that the injection which was administered by the accused doctor was not to be administered directly or was to be administered before taking certain precautions or was to be administered in a certain prescribed manner only. Further, nowhere in the prosecution evidence, it has come that the injection was administered at a place on the body of the patient where it ought not to have been administered. Admittedly, patient Shahana has suffered both physical and mental hardships but that cannot in itself form the basis of arriving at the conclusion that the accused doctor is guilty of medical professional negligence falling within the domain of criminal law. Whatever accused doctor has done in the case before him might have been done by any other medical professional possessing requisite Page 17 of 17 medical/professional skill. I am thus of the opinion that prosecution has failed to prove its case beyond reasonable doubt that the accused doctor is guilty of criminal negligence. It is may also here be noted that this does not in any manner estop the patient injured from proceedings against the accused doctor under the civil law.
6. In view of the foregoing, accused is acquitted of the offence punishable u/s 338 IPC. His B/B/S/B stands discharged. File be consigned to record room. Announced in open court on 05.11.09. (SATISH KUMAR ARORA) Metropolitan Magistrate KKD, Delhi