Delhi District Court
Dr. Bhagwat Dayal vs State on 14 November, 2022
IN THE COURT OF SHRI ARUL VARMA, ASJ04 AND
SPECIAL JUDGE (NDPS) SOUTHEAST: SAKET COURTS: NEW
DELHI
CA No. 109/2017
Dr. Bhagwat Dayal
S/o Sh. Raghubir Sharma
R/o Vashist Krishi Farm
Hari Nagar PartII
New Delhi
..........Appellant
Vs.
STATE
Through Station House Officer
Police Station Badarpur
New Delhi
...........Respondent
Instituted on :15.03.2017
Argued on : 08.09.2022
Decided on : 14.11.2022
JUDGMENT
1. Vide this order, this Court shall adjudicate the Criminal Appeal filed by appellant, seeking to set aside impugned judgment of conviction dated 07.01.2017 and order on sentence dated 16.02.2017, passed by Ld. Trial Court, whereby the Ld. ACMM convicted the appellant for the offences punishable u/s 304 A IPC and also directed the appellant to undergo sentence of rigorous imprisonment for a period of two years alongwith fine of Rs. 25,000/ to be deposited in DLSA/Court. CA 109/2017 Dr. Bhagwat Dayal Vs State Page No. 1/18
IMPUGNED ORDER FACTS
2. The facts of the case are hereby succinctly recapitulated: It was alleged that the appellant/accused is a doctor by profession, was giving treatment to a girl namely Ruchi and, on 03.11.1998, the appellant had given her Allopathic injection of diazepam and when her condition deteriorated, the appellant/accused referred her to Holy Family Hospital on 03.11.1998. It was further alleged that when Ruchi was taken to Holy Family Hospital, she was declared brought dead and thereafter police was called and her body was sent for postmortem. Allegations of medical negligence were made qua the appellant, and thus the present FIR got registered implicating him.
FINDINGS OF THE LD TRIAL COURT
3. After weighing the evidence, the Ld Trial Court observed that the incident took place in the evening of 03.11.1998 and FIR was registered at 02:40am the next day. Hence, there was delay of 7 hours which, according to the accused, was not cogently explained. However, Ld Trial Court rightly observed that since the family members of the deceased were in a shock, and it took them time to gather their wits, the delay was justified and cogently explained.
4. Ld. Trial Court further held that PW Daljit Singh's wife, and mother of CA 109/2017 Dr. Bhagwat Dayal Vs State Page No. 2/18 deceased Ruchi, was not made a witness in this case. Qua this, the Ld Trial Court again correctly concluded that the case of prosecution has sufficiently been proved on the basis of other witnesses. Ld Trial Court opined that the accused was guilty of medical negligence. Thus, Ld. Trial Court convicted the appellant Dr. Bhagwat Dayal for the offence punishable u/s 304 A IPC CONTENTIONS OF LD. COUNSELS FOR THE APPELLANT & LD. ADDL PP FOR THE STATE
5. At the outset, Ld Counsel for the appellant had stressed that the appellant was competent to administer the injection in question. He submitted that the appellant possessed a B.A.M.S (Bachelor in Ayurvedic Medicines & Surgery), and was qualified to profess the profession of a doctor. Ld Counsel placed reliance on the Indian Medicine Central Council Act, 1970 and the Delhi Bhartiya Chikitsa Parishad Act, 1998 to buttress his arguments. Ld. Counsel for the appellant submitted that the Ld. Trial Court wrongly placed reliance on the testimony of PW4, PW6 and PW 14 while passing the impugned judgment on conviction. It was submitted that in the testimony of PW4, he stated that appellant took the deceased in basement and gave her injection and thereafter he was sent to get some medicines but could not get the said medicines. But in the cross examination, the said witness had deposed that the patient was taken in CA 109/2017 Dr. Bhagwat Dayal Vs State Page No. 3/18 the basement by the compounder, and not by the appellant, which clearly shows that the injection was not administered by the appellant and it was done by the compounder and in this respect, there is no concept of vicarious liability under criminal jurisprudence and, therefore, the appellant could not have been convicted u/s 304 A IPC as it was not the appellant who gave the injection. It was further submitted that the prime witness i.e. the mother of deceased, who took the girl to the appellant's clinic was not examined by the prosecution.
6. Ld. Counsel for appellant also submitted that the Ld. Trial Court while passing the impugned judgment, placed reliance on the testimony of PW 14 (Dr. O.P Murty), who was a professor from the Department of Forensic Medicine and Toxicology, AIIMS, New Delhi. It was argued that a perusal of the testimony of the said doctor and the report submitted shows that diazepam was present in the body of the deceased, and it also came on record, in the testimony of the said doctor, that diazepam in the blood and urine may be detected after many days of its administration. Therefore, according to Ld Counsel, connecting the diazepam injection to the date of incident i.e. 03.11.1998 is beyond medical science.
7. It was contended that Diazepam is a drug which is present for nearly 200 hours after being administered and on 02.11.1998, she was given the CA 109/2017 Dr. Bhagwat Dayal Vs State Page No. 4/18 same, therefore, there was no conclusive evidence to show that Diazepam was given on 03.11.1998 by the appellant or by the compounder. It was further submitted by the Ld. Counsel for appellant that the Ld. Trial Court failed to take the note of the fact that Ruchi was a patient of Epilepsy and even her teeth joined, which shows that she suffered seizures and the death could have been due to shock caused because of seizures.
8. It was further contended that if the drug Diazepam had reacted then it would have reacted on 02.11.1998 but the same did not happen, which demonstrates that the patient did not have any reaction to the same. Further, diazepam causes Respiratory Depression and shock (allergic Shock), and PW14, Dr. Murthy in his report only mentioned of shock but which type of shock, was not mentioned by him, as there are 6 types of shock in medical terms, which raises doubts on the said report. Lastly, Ld Counsel placed reliance on Jacob Mathews v State of Punjab (2005) 6 SCC 1 seeking exoneration of the appellant by contending that he was not negligent whilst treating the girl.
9. Per contra, Sh. WasiUr Rahman, Ld. Addl. PP for the state submitted that the Ld. Trial Court rightly convicted the appellant herein. It was submitted by Ld. Addl PP for State that it was an admitted fact that the CA 109/2017 Dr. Bhagwat Dayal Vs State Page No. 5/18 victim/deceased was being treated by the appellant herein, in his clinic. It was further submitted that the Diazepam was found in the body of deceased as she was declared dead immediately after leaving the clinic. He further contended that the appellant did not have any authority to administer the Diazepam and he could not produce on record such authorization. Thus, it was submitted that a case of medical negligence is squarely made qua the appellant.
10. Submissions heard.
DECISION I, John Lettsome, Blisters, bleeds and sweats 'em, If, after that, they please to die, I, John Lettsome.
'When people's ill, they comes to I, I physics, bleeds, and sweats em;
Sometimes they live, sometimes they die.
What's that to I? I lets 'em.' Para 49, Poonam Verma v Ashwin Patel WHETHER THE ACCUSED, HOLDING A B.A.M.S DEGREE, WAS QUALIFIED TO PRACTICE ALLOPATHY
11.It was strenuously argued by Ld Counsel for the accused that the appellant was a holder of B.A.M.S degree and therefore competent to practice Integrated Medicine which includes modern scientific system of medicine in all its branches including surgery. In a nutshell, he contended CA 109/2017 Dr. Bhagwat Dayal Vs State Page No. 6/18 that the appellant was competent to administer basic allopathic medicines.
12.However, the law in this regard is no longer res integra. Way back in 1996, the Hon'ble Supreme Court enunciated the law qua 'negligence per se', albeit in the context of a DHMS (Diploma in Homoeopathic Medicine & Surgery) doctor. It was laid down in Poonam Verma v Ashwin Patel (1996) 4 SCC 332 as thus:
"37.An ailment, if it is not surgical, is treated by medicines or drugs. Typhoid Fever, for example, can be treated not only under Allopathic System of medicine, but also under the Ayurvedic, Unani and Homoeopathic Systems of Medicine by drugs prepared and manufactured according to their own formulate and pharmacopoeia . Therefore, a person having studied one particular System of Medicine cannot possibly claim deep and complete knowledge about the drugs of the other System of Medicine.
38.The bane of Allopathic medicine is that it always has a sideeffect. A warning to this effect is printed on the trade label for the use of the person (Doctor) having studied that System of Medicine.
39.Since the law, under which Respondent No. 1 was registered as a Medical Practitioner, required him to practice in HOMOEOPATHY ONLY, he was under a statutory duty not to enter the field of any other System of Medicine as, admittedly, he was not qualified in the other system, Allopathy, to be precise. He trespassed into a prohibited field and was liable to be prosecuted under Section 15(3) of the Indian Medical Council Act, 1956. His conduct amounted to an actionable negligence particularly as the duty of care indicated by this Court in DR. LAXMAN JOSHI'S CASE (SUPRA) WAS BREACHED BY HIM ON ALL THE THREE COUNTS INDICATED THEREIN.
40.Negligence has many manifestations it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal CA 109/2017 Dr. Bhagwat Dayal Vs State Page No. 7/18 negligence, gross negligence, hazardous negligence, active and passive negligence, willful or reckless negligence or Negligence per se, which is defined in Black's Law Dictionary as under:
Negligence per se: Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes.
41. A person who does not have knowledge of a particular System of Medicine but practices in that System is a Quack and a mere pretender to medical knowledge or skill, or to put it differently, a Charlatan
42. Where a person is guilty of Negligence per se, no further proof is needed..."
13.Ld Counsel for the accused had placed reliance on Sections 2(b) and 2(h) of The Delhi Bhartiya Chikitsa Parishad Act, 1998 to emphasize that integrated medicine, as defined in the Act, means conjoint, concurrent study & training and practice in Ayurved/Siddha/Unani Tibb and Modern Scientific system of medicine in all its branches including surgery and obstetrics. According to him, the Indian System of Medicine includes Ayurveda etc. supplemented or not, with modern advances in modern scientific system of medicine. This contention cannot be countenanced in light of the fact that the appellant did not supplement his Ayurveda rather totally supplanted it with Allopathy. Moreover, in Delhi Medical Association v Principal Secretary, (Health) 2016 SCC OnLine Del CA 109/2017 Dr. Bhagwat Dayal Vs State Page No. 8/18 2289 it was deduced as hereunder:
"That all that the definition of Indian Medicine in the Indian Medicine Act particularly the words "whether supplemented or not by such modern advances as the Central Council may declare by notification from time to time" and the notifications / clarifications of the CCIM thereunder and the imparting of theoretical knowledge of modern scientific medicine and training thereunder to holders of degrees in integrated medicine within the schedules to the Indian Medicine Act do is to enable such practitioners of Indian Medicine to make use of the modern advances in various sciences such as Radiology Report, X Ray, Complete Blood Picture Report, Lipids report, E.C.G., etc. for purposes of practicing in their own system."
14.The appellant also did not make use of any modern advances; he did not prescribe any blood test etc before administering the allopathic medicine.
15.Also, in this context, categorical directions have been enunciated by the Hon'ble Delhi High Court in Delhi Medical Association(supra). It was directed as thus:
"(A) By declaring that no practitioner of Indian System of Medicine or holding a qualification as listed in the Schedule to the Indian Medicine Central Council Act, 1970, even if it be of in integrated medicine as defined in Section 2(h) of the Delhi Bharatiya Chikitsa Parishad Act, 1998, is entitled to practice modern scientific system of medicine as defined in the Indian Medical Council Act, 1956 read with Indian Medical Degrees Act, 1916 and as has come to be known as Allopathic system of medicine. (C)By declaring that Section 2(h) of the Delhi Bharatiya Chikitsa Parishad Act, 1998 or any other provision thereof or of the Indian Medicine Central Council Act, 1970 does not permit any person holding qualification in Indian Medicine as prescribed in the Indian Medicine Central Council Act, 1970 even if a degree in integrated course to practice modern scientific system of medicine in terms of Indian Medical Council Act, 1956 read with Indian Medical Degrees Act, 1916 and Delhi Medical Council Act, 1997."CA 109/2017 Dr. Bhagwat Dayal Vs State Page No. 9/18
16.It further laid down:
"33.Similarly, in view of the statutory provisions applicable to Delhi i.e. in the DMC Act, which do not allow name of anyone other than those holding the qualifications listed in the Schedules to the MCI Act to be registered in the State Register maintained thereunder and which is essential for practicing modern scientific system of medicine in Delhi, the question of allowing the practitioners of Indian System of Medicine even if holding degree in integrated medicine, to practice modern scientific system of medicine in any form, for the reason of need in rural areas or in the slums or to serve the economically weak and backward areas or for the reason of deficiency in sufficient number of doctors qualified in modern scientific system of medicine does not arise.
34.We also do not find any merit in the challenge to the maintainability of this petition as a PIL or on the ground of the same having been filed for any oblique purpose. Rather, we do find the notification dated 19 th May, 2004 of the CCIM as set out hereinabove to be quite misleading and capable of being understood as allowing persons not holding qualification in modern scientific system of medicine to practice the said system of medicine and which is contrary to law and can play havoc with the health and lives of citizens of the city."
17.In fact, in Poonam Verma (supra) it was elucidated that even though the study of human structure and functions thereof are taught universally in all streams of medicine, however the study of drugs and administration thereof is different. The verdict expounded as thus:
"35.It is true that in all the aforesaid Systems of Medicine, the patient is always a human being. It is also true that Anatomy and Physiology of every human being all over the world, irrespective of the country, the habitat and the region to which he may belong, is the same. He has the same faculties and same systems. The Central Nervous System, the CardioVascular System, the Digestive and Reproductive systems etc. are similar all over the world.CA 109/2017 Dr. Bhagwat Dayal Vs State Page No. 10/18
Similarly, Emotions, namely, anger, sorrow, happiness, pain etc. are naturally possessed by every human being.
36. But merely because the Anatomy and Physiology are similar, it does not mean that a person having studied one System of Medicine can claim to treat the patient by drugs of another System which he might not have studied at any stage. No doubt, study of Physiology and Anatomy is common in all Systems of Medicines and the students belonging to different Systems of Medicines may be taught physiology and Anatomy together, but so far as the study of drugs is concerned, the pharmacology of all systems is entirely different."
18.The above verdicts make it amply clear that the appellant, being a BAMS degree holder, was not qualified to administer allopathic medicines. And diazepam, the drug administered was not just an ordinary allopathic medicine, but one falling under Schedule H of the Drugs & Cosmetic Rules, 1945 and also under the Narcotics Drugs & Psychotropic Substances Act, 1985. The doctor had no qualification, and consequently no authority to prescribe or administer Diazepam. WHETHER THE CONDUCT OF THE ACCUSED FALLS IN THE REALM OF MEDICAL NEGLIGENCE
19.The preceding paragraphs make it abundantly explicit that the appellant, being a BAMS degree holder, entered into the sphere of allopathy and injected diazepam, as found in the body of the deceased as per post mortem report. He is clearly guilty of negligence per se sans further proof.
20.Ld Counsel for the appellant had placed reliance on Jacob Mathews CA 109/2017 Dr. Bhagwat Dayal Vs State Page No. 11/18 (supra) to bring to the fore that no sensible professional would intentionally commit an act or omission which would result in injury or loss to the patient. It was highlighted that indiscriminate prosecution of medical professionals for criminal negligence is counterproductive and does no service or good to the society. It was also argued that 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 and that 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'.
21.At first blush, the above extracts quoted by Ld. counsel for the accused from Jacob Mathews (supra) seem to suggest that appellant exercised a reasonable degree of care. However, this contention cannot be countenanced in view of the fact that the appellant was not medically qualified to prescribe allopathic medicines or injections. In fact, a perusal of testimony of PW1 Daljit Singh i.e. father of the deceased deposed that he took his daughter on 01/11/1998 for treatment to the accused and the doctor conducted a checkup and prescribed some medicines. The deceased daughter was taken again to the appellant on the same day in CA 109/2017 Dr. Bhagwat Dayal Vs State Page No. 12/18 the evening, on next day i.e. 02/11/1998 in the morning and in the evening and also on the fateful day 03/11/1998 at around 5:30 PM. The record states that it was the appellant herein who was conducting checkup and administering and prescribing medicines to the deceased. The factum of the deceased Ruchi visiting the clinic of the appellant has been corroborated by the testimony of PW4 Lakhi Chand and PW 6 Sukh Ram. PW4 categorically deposed as thus:
"I saw that the girl was got laid in the clinic and the doctor has administered medicine to her and she was crying. Thereafter, took her in the basement and gave her an injection (the glucose bottle). The girl got upset and her teeth were jointed. The doctor sent me to take some medicine."
22.Similarly PW6 categorically deposed as thus:
"I accompanied minor daughter of Daljit Singh Pathania with his wife to Dr BD Vashisht accused present in court at about 5:40 PM. The doctor examined the patient Ruchi and sent her to the basement with compounder who try to administer IV fluid (glucose) but he failed to do so. The compounder administrated injunction (sic) on the body of patient, while injunction was being administered by the compounder, the girl started crying. We called Dr BD Vashisht, who prescribed some injunction and our colleague Lakhi went to purchase injunction."
23.Ld. counsel for the accused had sought to assail the testimonies of these eyewitnesses. It was submitted that both the witnesses have only mentioned administering of glucose, and that too by the compounder and not by the doctor. It was argued that vicarious liability cannot be fastened upon the doctor appellant, for the acts of the compounder. CA 109/2017 Dr. Bhagwat Dayal Vs State Page No. 13/18
24.As far as the contention of vicarious liability is concerned, the question thereof does not arise in the present case. The doctor was very much present at the time of administering of injection to the deceased. In this context it would be pertinent to peruse the crossexamination of PW4 Lakhi Chand:
"my intention or meaning by saying in chief examination that Dr took the patient to basement was that the patient was taken in the basement by his compounder under the direction of Dr Vashisht. The compounder joined to administer glucose to the patient but since he did not succeed, then he called the doctor who administered the glucose to the patient".
25.The Ld Trial Court also correctly placed reliance on Ex. PW1/C to conclude that the appellant was treating the deceased by way of allopathic medicines and that on 02/11/1998, the appellant had prescribed allopathic medicines and injection calmpose which is the brand name of diazepam. Ex PW1/C categorically mentions certain allopathic medicines prescribed by the appellant, including injection Calmpose. The prescription was proved as per law. The appellant did not dispute its veracity or his handwriting therein either in the cross examination of the witnesses, nor during recording his statement u/s 313 CrpC. An ayurvedic practitioner is not supposed to write prescriptions in such a manner. The administering of allopathic medicines and injection is not only a negligent act but also a rash act and the appellant was aware that CA 109/2017 Dr. Bhagwat Dayal Vs State Page No. 14/18 administering the same night have side effects, but still took the risk. The Ld Trial Court rightly observed that the appellant did not deny that these prescriptions did not belong to him. The fact of the appellant prescribing allopathy is also established from a perusal of testimony of PW4 and PW1 who both deposed that the appellant had told them to get the injection prescribed in Ex. PW/B i.e. Dilantin.
26.Significantly, the factum of diazepam being administered was established from the testimony of PW 14 Dr OP Murty, Professor from the Department of Forensic Medicine and Toxicology, AIIMS hospital. The doctor proved his postmortem report as Ex. PW 14/A and a perusal thereof reveals that he had given a positive result for diazepam at injection site A 4. The witness opined that death in this case was due to shock as a result of parental administration of diazepam. Thus, the Ld Trial Court correctly arrived at the conclusion that local presence of diazepam on the spot of administration shows that she was given diazepam injection before her death. There is nothing on record to show that some other person administered diazepam to the deceased or that she was treated somewhere else before being examined by the appellant. Death occurred immediately after administering of injection by the accused, and not because of seizures as argued by Ld Counsel for the CA 109/2017 Dr. Bhagwat Dayal Vs State Page No. 15/18 appellant. No question, regarding treatment by any other person apart from the accused, was asked in the crossexamination of PW1, father of the deceased, or to any other witness. Neither such a plea was taken while recording statement of the accused u/s 313 CrPC.
CONCLUSION
27.In Poonam Verma (supra), it was held as follows:
" But we are of the positive opinion that Respondent No.1, having practised in Allopathy, without being qualified in that system, was guilty of Negligence per se and, therefore, the appeal against him has to be allowed in consonance with the maxim Sic Utere tuo ut alienum non loedas (a person is held liable at law for the consequences of his negligence), leaving it to repeat to himself the words of Dr.J.C. Lettsom (On Himself) :
'When people's ill, they comes to I, I physics, bleeds, and sweats em;
Sometimes they live, sometimes they die. What's that to I? I lets 'em.'"
28.The law needs no reiteration. There are a plethora of verdicts which unanimously ordain that it is not open to practitioners of Indian System of Medicine such as Ayurveda, to practice modern system of medicine i.e allopathy, without qualification in the said modern system of medicine. Allopathic system of medicine is not included in the Indian System of Medicine. Admittedly, the appellant did not prescribe any ayurvedic medicine to the patient, rather transgressed into a domain beyond his CA 109/2017 Dr. Bhagwat Dayal Vs State Page No. 16/18 expertise and qualification, by practicing allopathy. This Court has thus no hesitation in holding him to be guilty on count of negligence per se.
29.Ergo, in view of the aforesaid discussion, this Court finds no infirmity qua conviction of the appellant in the impugned judgment of conviction dated 07.01.2017 and order on sentence dated 16.02.2017, passed by, Ld. MM, SouthEast, Saket Courts New Delhi, and thus the present Criminal Appeal, filed by the appellant is hereby dismissed. Let appellant/convict be taken into custody COMPENSATION
30.It is pertinent to note that despite passage of more than two decades, the family members of the deceased have not been compensated as per the existing Delhi Victim Compensation Scheme. This Court is conscious of the fact that no amount of money can erase the trauma and grief that the family members of the deceased have suffered. No amount of money can compensate the agony that they have undergone, but it is hoped that some compensation can go in alleviating a bit of the suffering that they have endured, and in recompensing legal and other expenses incurred Accordingly, copy of this order be sent to the Ld Secretary, DLSA, South East District with a request to provide adequate compensation as per law to the family members of the victim.
31.TCR, if any, alongwith copy of this order be sent to Ld. Trial Court for CA 109/2017 Dr. Bhagwat Dayal Vs State Page No. 17/18 necessary information/ compliance.
32.Appeal file be consigned to record room after due compliance.
33. Order be uploaded on official website of District Courts. Announced in the open court on 14th November, 2022 (ARUL VARMA) ASJ04 & Spl. Judge (NDPS) SouthEast District Saket Courts, New Delhi CA 109/2017 Dr. Bhagwat Dayal Vs State Page No. 18/18