Delhi District Court
State vs Dr. Seema Etc.(3-B)(Oldest Case) on 15 May, 2025
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR,
ADDL. SESSIONS JUDGE (FTC)-01, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR No.DLCT01-000016-2007
SC No.27191/2016
FIR No. 237/2006
U/s 304(II)/420/34 IPC
P. S. Subzi Mandi
STATE VERSUS DR. SEEMA AND ORS.
(i) SC No. of the case : 27191/2016
(ii) Date of commission of offence : 27.05.2006
(iii) Name, parentage and address : (1) Dr. Seema
W/o Dr. Mukeem Ahmed
R/o 7291, Ist Floor, Gali No.2,
Prem Nagar, Shakti Nagar
Delhi
(2) Dr. Mukeem Ahmed
S/o Late Mohd. Ibrahim
R/o 7291, Ist Floor, Gali No.2,
Prem Nagar, Shakti Nagar
Delhi
(3) Dr. Swapnil Sandhya
W/o Sh. Sanjay Singh
R/o H. No.869
Sector D, Peshwa Road,
Mandir Marg, Delhi
(iv) Offences complained of : 304(II)/420/34 IPC
(v) Plea of the accused : Not guilty
Page 1 of 67
SC No.27191/2016
FIR No. 237/2006
P. S. Subzi Mandi
State vs. Dr. Seema and Ors.
(vi) Final order : (i) Acquittal under Section
304/304A/417/34 IPC
(ii) Accused No.2 is held guilty
under Section 6 of Delhi
Nursing Home Registration
Act 1953
(vii) Date of such order : 15.05.2025
Date of Institution : 21.07.2009
Date of Judgment reserved on : 30.04.2025
Date of Judgment : 15.05.2025
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION:-
1. The present case was registered on the complaint of Sh.
Billu which is Ex.PW2/A1 to Ex.PW2/A9 filed before the then learned MM. Vide order dated 07.06.2006 the then learned MM had directed to register FIR in the complaint CC No.2757/1 under Section 299/304 (II) /420/34 IPC. Hence FIR Ex.PW11/A vide No.237/2006 dated 09.06.2006 was registered in the matter. The case of the complainant is that he was married to Ms. Radha (since deceased and herein referred as "the deceased") and from the wedlock two children were born.
Page 2 of 67 SC No.27191/2016 FIR No. 237/2006P. S. Subzi Mandi State vs. Dr. Seema and Ors.
The deceased was aged about 26-27 years. The deceased had pregnancy of 4 months on 27.05.2006 when she had developed abdomen pain. The complainant had taken the deceased around 11:00 AM at Life Nursing Care Home, Kabir Basti, Sabzi Mandi, Malka Ganj, Delhi-07 for check-up where Dr. Seema/ accused No.1 had examined the deceased. After examination accused No.1 told the complainant that the child in the womb had since expired due to which the deceased was having pain in her abdomen and there was necessity of immediate surgical operation failing which there was danger to life of the deceased. Accused No.1 is wife of accused No.2/ Dr. Mukeem Ahmed who together told the total expenditure of operation was Rs.15,000/-. Rs.8000/- was given by the complainant on asking of accused No.1 and 2. On prescription the complainant brought medicine and handed them over to above two accused which were administered to the deceased alongwith injection.
2. The deceased was taken at first floor about 1:00 PM out of the operation theater at Life Care Nursing Home where she had remained till 6:00 /7:00 PM. One nurse was also present during operation while the complainant was sitting outside. At that time about 6:00/7:00 PM accused No.1 had asked the complainant to take the deceased to some good hospital to save Page 3 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
the life of the deceased. The complainant was shocked to see that his wife /deceased was bleeding profusely then the complainant took the deceased to St. Stephen Hospital Tis Hazari Delhi. The bleeding continued and on the same day on 27.05.2006 the deceased had expired.
3. Later on the complainant came to know that both accused No.1 and 2 were not qualified doctors and they had not passed any medical examination to run the nursing home or to conduct surgical operation or to treat any patient. On learning this the complainant had informed the police control room who had not taken any action. Police recorded statement of complainant on 29.06.2006. But only after directions from learned MM the investigation in the matter had started after registration of FIR .
4. Vide order Ex.PW8/B issued by Delhi Medical Council accused No.3 Dr. Swapnil Sandhya was issued a warning to be careful in future for having failed to exercise reasonable expertise in taking timely action in post operative management of the patient. It is recorded in the order that at St. Stephen Hospital the patient was received in the condition of extreme shock and gasping and despite all efforts the deceased had expired at 10:20 PM on 27.05.2006. It is recorded that no Page 4 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
postmortem was conducted on the body of the deceased. It is also recorded that the Life Care Poly Clinic was not registered with Directorate of Health Services. It did not have requisite space, equipment, trained manpower to conduct procedure like check curettage. The surgery was conducted by accused No.3 despite of inadequacy of place and equipment as a visiting specialist at Life Care Charitable Poly Clinic. After check curettage the patient/ deceased showed signs of further bleeding from vagina and other signs of disseminated intravascular coagulation (hereinafter referred as "DIC") which lead to extreme shock on the patient. It is mentioned in the order that the patient could be referred to higher centre immediately after completing check curettage. The condition of the deceased was not monitored properly / adequately after preforming check curettage. DIC is a non completion of excessive bleeding in case of incomplete abortion. Early sign of which was missed at Life Care Charitable Poly Clinic due to which the patient went in severe shock who was gone unnoticed and from where the deceased could not be revived. Accused No.1 and 2 did not apply reasonable scientific competency in admitting the deceased despite of having inadequate facility for such clinical situation. Warning was issued to accused No.3 to be careful in future.
Page 5 of 67 SC No.27191/2016 FIR No. 237/2006P. S. Subzi Mandi State vs. Dr. Seema and Ors.
5. Complaint Mark-PW20/DA was also filed by father of deceased Sh. Sobran Singh against the complainant Sh. Billu and his parents for killing the deceased. It is alleged in the complaint that the complainant had not got conducted post- mortem on the body of the deceased and burnt it. It is further alleged that for the greed of dowry the complainant Billu had killed his wife. It is alleged that the deceased had told Sh. Sobran Singh / father of deceased that the complainant Billu had beaten her and got her eaten something and when she refused to eat she was beaten. Regarding this a complaint No.2016/06 was also lodged by him at PS Subzi Mandi.
6. The police had investigated the case and filed the chargesheet. All the 3 accused were summoned.
7. Charge was given under Section 6/34 Delhi Nursing Home Registration Act, 1963 and under Section 417/34 IPC to accused No.1 and 2 on 19.08.2009 who had pleaded not guilty and claimed trial. Accused No.1 was further charged under Section 304 IPC on 19.08.2009 who had pleaded not guilty. Accused No.3 was charged under Section 304A IPC on 19.08.2009 who had pleaded not guilty and claimed trial.
Page 6 of 67 SC No.27191/2016 FIR No. 237/2006P. S. Subzi Mandi State vs. Dr. Seema and Ors.
8. Prosecution has examined PW-1 to PW-21 as entire prosecution evidence against all the accused. Statement under Section 313 Cr. P. C. of accused No.1 Dr. Seema was recorded on 24.10.2013, of accused No.2 was recorded on 22.11.2013 and of accused No.3 was recorded on 29.10.2013. Accused No.1 did not seek to produce evidence in defence. However accused No.2 and 3 had sought to produce evidence in defence. The only witness produced in defence is DW-1 Dr. Neeta Sagar, HOD from Jagparvesh Chandra Hospital, Shastri Park, Delhi. This witness was produced on behalf of accused No.3. The accused No.2 and 3 did not produce any other witness and their evidence was closed by order of the Court vide order dated 17.04.2012.
9. Final arguments are heard from both the parties and record perused.
10. It was found during investigation that no nursing home by the name of Life Care Charitable Poly Clinic was registered with the Directorate of Health Services. The Life Care Charitable Poly Clinic was not found registered under MTP Act. It is the case of the prosecution that in the Life Care Page 7 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
Charitable Poly Clinic there was misrepresentation that they have all facility available with them. However they did not have facility to conduct check curettage due to which the deceased had suffered excessive bleeding and expired. The Life Care Nursing Poly Clinic was not registered under the law specified and accused No.1 and 2 had impersonated themselves as medical practitioners in the field allopathy and integrated system of medicine. According to the prosecution accused persons had not applied reasonable scientific facilities in treating the deceased. When the signs of DIC were detected earlier on the deceased then timely action had to be taken by accused No.3. The complainant had stated that he did not sign the consent form for admission which was sent to FSL for examination.
11. It is the case of the prosecution that on one signboard below the name of accused No.1 the qualification are written as BAMS, CHES and FCRH whereas on another signboard the word CHES and FCRH are concealed. The accused person had presented to the victim and her husband that they had sufficient medical facility which they did not have. The victim had expired at St. Stephan Hospital at 10:20 PM on 27.05.2006.
Page 8 of 67 SC No.27191/2016 FIR No. 237/2006P. S. Subzi Mandi State vs. Dr. Seema and Ors.
12. The accused No.1 Dr. Seema is charged with Section 304 IPC as she had taken care subsequent to check-curettage procedure on patient Radha in the absence of required medical qualification to undertake the medical procedure. She knew that there could be septic condition despite which accused No.1 had detained the patient Radha in nursing home thereby the accused had knowledge that by such act death of the patient would be caused. As a result the patient Ms. Radha had bled again in the evening. She was taken to St. Stephen Hospital where she expired at 10:30 PM. The necessary ingredients of Section 304 IPC are reproduced hereinasunder:
Hon'ble High Court of Calcutta (Appellete Side) in case titled Bodha @ Ramesh Turi & Ors vs The State Of West Bengal & Anr on 6 February, 2023 in CRR 989 of 2019 has laid down as under:
26. Before Section 304 can be invoked, the following ingredients must be satisfied;
(i) the death of the person must have been caused;
(ii) such death must have been caused by the act of the accused by causing bodily injury;
(iii) there must be an intention on the part of the accused
(a) to cause death; or
(b) to cause such bodily injury which is likely to cause death; (Part I) or
(iv) there must be knowledge on the part of the accused that the bodily injury is such that it is likely to cause death (Part II).
Page 9 of 67 SC No.27191/2016 FIR No. 237/2006P. S. Subzi Mandi State vs. Dr. Seema and Ors.
27. Section 304A was inserted by the Indian Penal Code (Amendment) Act, 1870 (Act XXVII of 1870) and reads thus; 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.
28. The section deals with homicidal death by rash or negligent act. It does not create a new offence. It is directed against the offences outside the range of Sections 299 and 300, IPC and covers those cases where death has been caused without `intention' or `knowledge'. The words "not amounting to culpable homicide" in the provision are significant and clearly convey that the section seeks to embrace those cases where there is neither intention to cause death, nor knowledge that the act done will in all probability result into death. It applies to acts which are rash or negligent and are directly the cause of death of another person.
29. There is thus distinction between Section 304 and Section 304A. Section 304A carves out cases where death is caused by doing a rash or negligent act which does not amount to culpable homicide not amounting to murder within the meaning of Section 299 or culpable homicide amounting to murder under Section 300, IPC. In other words, Section 304A excludes all the ingredients of Section 299 as also of Section 300. Where intention or knowledge is the `motivating force' of the act complained of, Section 304A will have to make room for the graver and more serious charge of culpable homicide not amounting to murder or amounting to murder as the facts disclose. The section has application to those cases where there is neither intention to cause death nor knowledge that the act in all probability will cause death.
30. In Empress v. Idu Beg, (1881) ILR 3 All 776, Straight, J. made the following pertinent observations which have been quoted with approval by various Courts including this Court;
"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 knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act Page 10 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
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".
12.1. The first ingredient the prosecution has to prove is that death of a person has been caused. PW-8 Dr. Aryan Baishya has deposed in cross examination as correct that during inquiry it was established that the patient had expired at St. Stephen Hospital. No Doctor from St. Stephen Hospital was examined by Disciplinary Committee of Delhi Medical Council. The complaint at Delhi medical Council was filed by one Sh. Sobran Singh, father of deceased Radha in which the father had alleged that his son in law Billu and his family had administered some poison to his daughter. Sh. Sobran Singh was not called in the inquiry. The body of the deceased was not sent for postmortem. No doctor was summoned from Bhartiaya Chiktsa Parishad during such inquiry. The order passed by the Inquiry Committee is Ex.PW8/A which was signed by PW-8 dated 27.04.2007. The Chairman of the Inquiry Committee was Dr. V. K. Arora. In the inquiry order Ex.PW8/A it was held that accused No.1 and 2 did not apply reasonable scientific competency and admitted patient without Page 11 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
adequate facilities. Accused No.3 has failed to exercise reasonable expertise in detecting early signs of DIC in the patient. PW-15 Dr. T. K. Cherian has deposed that the patient Radha was admitted at St. Stephen Hospital on 27.04.2006 at 7:15 PM who was declared dead due to cardiac arrest at about 10:20 PM. Hence the above evidence sufficiently proves on record the death of patient / Ms. Radha had been caused. Dead body of which was handed over to the husband of the patient who thereafter performed last rites. The above evidence is unrebutted and unimpeached and hence the prosecution has successfully proved that death of a person was caused.
12.2. The second ingredient the prosecution has to prove is that such death of a person was caused by the act of the accused by causing bodily injury. The first point to be noted is that in this case postmortem of the patient / Ms. Radha was not conducted due to the reason that the St. Stephen Hospital as per deposition of PW-15 had directly handed over the body of the patient to the husband of the deceased who thereafter performed last rites of the deceased. When the patient who had expired was young death and the death was unnatural therefore it was incumbent on the part of the St. Stephen Page 12 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
Hospital to have conducted postmortem of the deceased as medico-legal case. It is admitted by PW-15 at page 4 of his cross examination that in routine practice the attending Doctor advised the attendant of the patient to go for postmortem of the body to find out the cause of death. He cannot say if such practice is followed rigorously. In this case this practice was not followed as the attending Doctor did not consider it a medico legal case. However PW-15 has failed to produce such record of the Doctor to show the formation of such opinion and the document on the basis of which such opinion was formed by Doctor at St. Stephen Hospital. In absence of postmortem report it cannot be said that what was the actual cause of death. PW-7 Ms. Usha mother in law of the deceased has deposed that she was informed at St. Stephen Hospital by the Doctor that some medical instrument had caused some bodily injuries on the deceased Ms. Radha. Therefore when the Doctor at St. Stephen Hospital as per deposition of PW-7 can communicate the basis of injury on the deceased then the same must also be recorded in document whereas St. Stephen Hospital has failed to produce in evidence any such document. Other then this if the Doctor at St. Stephen Hospital has came to know about the fact that such bodily injury was caused upon the deceased by a medical instrument then the next in Page 13 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
line procedure to be undertaken on the patient must have also been indicated. The steps should have been to immediately repair such injury. Neither the St. Stephen Hospital has produced the nature of injury nor it has shown on record that it had taken any step to repair such injury on the deceased Radha despite of knowledge of the fact with the Doctors at St. Stephen Hospital that such injury was caused upon the deceased Radha. The act of the complainant by immediately burning of the body of the deceased cast doubt on his conduct. PW-2 Sh. Billu in cross examination at page 6 has admitted as correct that no postmortem on the body of his deceased wife was conducted. It is admitted as correct that his father in law Sh. Sobran Singh had lodged a complaint against PW-2 before SDM and as per deposition of PW-2 this complaint was lodged by his father in law at the instance of accused No.2 Dr. Mukeem. The complaint was lodged with the charges that PW-2 had poisoned his wife. It is denied that because PW-2 has given some Desi medicine to his wife to get her fetus aborted and for that reason PW-2 had not sent the body for postmortem. Without reason the fetus in the body would not die. Therefore it was required in the postmortem not only to verify why the fetus had expired but also that why deceased Ms. Radha had expired. On the face of it the case was a Page 14 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
medico legal case when PW-2 has claimed that the fetus was not aborted by him by administering some medicine whereas his father in law had made complaint against PW-2 not only in regard to dowry harassment but also that PW-2 had administered some poison to deceased Ms. Radha. Such complaint was lodged by father in law of PW-2 later on after conducting the last rites and in response of it PW-2 had also lodged complaint against the accused in the present case. However PW-7 Ms. Usha before conducting of postmortem had knowledge form Doctor that the patient Ms. Radha had suffered injury by some medical instrument and she was present throughout at the St. Stephen Hospital and it cannot be said that she had not told this to PW-2 the husband of the deceased and therefore the knowledge of such medical injury on the deceased is imputed to PW-2. Despite of such knowledge PW-2 had proceeded to conduct last rites of the deceased and instead of conducting postmortem he had hastily proceeded to conduct the last rites.
12.3. It is argued on behalf of the accused that on 27.05.2006 when the deceased was operated upon then at that time there was All India Strike conducted by Government Hospital Doctors on account of Mandal Commission Report.
Page 15 of 67 SC No.27191/2016 FIR No. 237/2006P. S. Subzi Mandi State vs. Dr. Seema and Ors.
The strike was for a period of 2-3 months. In this respect the Newspaper clippings are available on record from page 127 to 141 of part-III of the documents filed. The above Newspaper clippings report about medico continue anti quota stir. On 27.05.2006 the report is that Operation Threatre was closed for sometime in RML Hospital. However this Newspaper report is not brought on record in evidence nor copy of the complete Newspaper is filed. However IO / PW-20 at page No.469 of evidence file has deposed that he does not remember if during the said period the Doctors of all hospital in Delhi and all India level were on strike due to anti reservation scheme. However even today the Online Web Portals are full of news of anti reservation protest in the said period since April, 2006 continuing even after May, 2006. Hence on non-admission of above fact by PW-20 it cannot be said that the Government hospital in Delhi were dis-functional or that whether all or some of the Doctors were on strike. The items published in the Newspapers are only hearsay evidence and no judicial notice of the same can be taken. In chapter 11 titled 1st and 2nd Trimester Pregnancy Law written by Williams Textbook of Obstetrics 26th Edition at page No.201 mentions that in case of incomplete abortion during miscarriage the placental separation cause bleeding. The tissue Page 16 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
may remain entirely within the uterus or partially extrude through the cervix. The Modi's Medical Jurisprudence and Toxicology 23rd Edition at page 1015 records that when he duration of pregnancy is less than 12 weeks then a single Doctor can give an opinion and certify whether a termination is indicated. A pregnancy can be terminated at any stage by a single registered medical practitioner in a case where he is of the opinion formed in good faith that termination of pregnancy is immediately necessary to save life of the woman. It is recorded at page No.1017 that in a emergency a General Practitioner can terminate the pregnancy at any place irrespective of its duration. Even an RMP who had acquired training in Obstetric and Gynecology may terminate pregnancy in case of urgent necessity to save the life of the patient. The same is recorded at page No. 5558 of Parikh's Textbook of Medical Jurisprudence and Toxicology 6 th Edition. It is recorded at page No.677 of Book by Williams Obstetrics 19th Edition that when the placenta in whole or in part is retained in the uterus then bleeding ensues soon or later which produce main sign of incomplete abortion. The abortion which are more advanced has bleeding often profuse and occasionally may be messy to the point of producing profound hypovolemia. It is often unnecessary to dilate the Page 17 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
cervix before Curettage in many cases. Since the retained placenta tissue simply lies loose in the cervical canal and can be lifted from an exposed exterior os with ovum or ring forceps. Hence as per above medical test it cannot be said that in case of emergency accused No.3 could not have operated upon the deceased at Life Care Charitable Poly Clinic.
12.4. Ex.PW20/F are the documents seized pertaining to the deceased from Life Care Charitable Poly Clinic which records that the patient comes around 12:00 noon who had pain in abdomen since morning. Learned Counsel for the accused has argued that the deceased Radha was already administered some substance by her husband Billu/PW-2 and therefore the patient had come in pain with part abortion had already occurred. Accused No.3 had received a phone call at 12:10 PM who had reached immediately and seen the patient at 12:20 PM and records that patient need Check Curettage immediately. The patient was bleeding. The blood pressure of the patient was recorded between 110/70 to 100/60 from 12:00 PM till 6:15 PM on 27.05.2006. The above documents are of the prosecution and it is prepared with different pen ink and at different pages. Even when the correct preparation of the above document by the accused person is doubted though no Page 18 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
such special reason for doubt is pointed out by the prosecution. It is seen that the patient had reached at St. Stephen Hospital by 7:15 PM and after 3 hours of which the patient had expired. Hence 3 hours is a big period and it is the duty of the prosecution to prove that the patient in such stage at 7:15 PM could not be revived. No such evidence is produced by the prosecution. The Textbook of medicine by Davidson's in the book Principals and Practice of Medicine International Edition 23rd Edition records at page 934 that transfusion is major hemorrhage, fresh frozen plasma should be given as part of initial resuscitation at least in 1:2 ratio with red cell concentrate until coagulation results are available. If the patient is bleeding the ratio has to be 1:1 until laboratory results are available and use of cryoprecipitate should be considered. In the present case the prosecution has failed to show that St. Stephen had at all administered any such FFT. It was recorded in Book of Surgery by Bailey and Love's 23 rd Edition International Student Edition at page No.59 that the importance of blood in immediate resuscitation is at the threshold should transfuse urgently and it can be done with "O" group Blood. Resuscitation should not be delayed while waiting for the blood to be grouped. Hence it is seen that the St. Stephen Hospital had not administered the first line of Page 19 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
action on the deceased which is FFT even when the claim of St. Stephen is that the blood group could not be matched. However there is no such evidence by St. Stephen Hospital that it could match the blood group of the patient in time nor is there any evidence that blood group "O" was not available at St. Stephen Hospital. 3 hours are more than necessary time to revive any patient. Even the conduct of the St. Stephen Hospital by handing over the body to the husband of the deceased for cremation without doing postmortem despite of knowing/ having anticipation that the deceased may have injury inside due to Check Curettage though there is no basis with St. Stephen Hospital to claim the same.
12.5. Another aspect to be looked into is that accused No.1 to 3 have claimed that they had consent to do the Check Curettage Operation upon the patient / deceased. The consent was given by Sh. Billu/ husband of the patient who has deposed as PW-2. PW-2 has denied having given consent for such operation. The FSL report on the alleged consent where the initial signature of PW-2/ Billu are marked as Q-1 and Q-2 dated 27.05.2006, writing marked Q-3 and Q-4 on two plain slips, Q-5 and Q-6 are on letterhead of Life Care Hospital and Maternity Centre. The red enclosed specimen writing of Page 20 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
accused No.1 Dr. Seema are S-1 to S-20, S-21 to S-30 are specimen writing of accused No.2 Dr. Mukeem and S-31 to S-35 are the specimen writing of accused No.3 Dr. Swapnil, S-36 to S-40 are specimen writing of PW-2 / Billu. After laboratory examination the signature were not found of PW-2/ Billu. Similarly signature are not found matching with writing of accused No.1 Dr. Seema. No opinion could be expressed on Q-6, no authorship could be fixed regarding Q-1, Q-2 in comparison with S-1 to S-5 as well as S-31 to S-35. Hence similarity are found of accused No.1 in reference to Q-3 to Q-5 which are Ex.PW20/G, Ex.PW20/H and Ex.PW20/C which are prescribing medicines slips and prescription slip. However regarding Q-1 and Q-2 which are claimed by accused to be the signature of PW-2/ Billu do not find similarity with the handwriting of any of the accused No.1 and
2. Q-1 and Q-2 are Ex.PW20/E at page No.811 of the document file. Hence no conclusive finding has come on record as to the absence or presence of signature of PW-2 on Ex.PW20/E the consent form. Now other circumstances are looked into whether such signatures could be possibly done by PW-2/ Billu. It is deposed by PW-2 that when his wife Ms. Radha had pain in abdomen then it is he who had taken her to Life Care Nursing Home at Malka Ganj around 11:00 AM.
Page 21 of 67 SC No.27191/2016 FIR No. 237/2006P. S. Subzi Mandi State vs. Dr. Seema and Ors.
Accused No.1 had advised operation and asked PW-2 about total expenses for a sum of Rs.15,000/-. PW-2 went to his home, arranged Rs.8000/- and gave them to accused No.1 at 12:00 noon after which only the operation was started. The operation was performed at 1st floor which was conducted around 2:00 PM. PW-2 went upstairs and had looked at his wife through window. He had seen his wife being operated upon. After the operation the wife was shifted in the room and her medical condition was normal. In cross examination it is deposed by PW-2 that he had pointed out the Operation Threatre where operation was performed on his wife. During cross examination by learned Addl. PP for the State it is deposed by PW-2 as correct that he had also pointed out another room where his wife was shifted after operation. He has deposed that accused No.1 and 2 performed operation upon his wife and on the same para at page 4 of his cross examination it is deposed that another lady doctor besides accused No.1 had come to Nursing Home and she had performed the operation which is denied during deposition though confronted with his statement Ex.PW2/P from point A to A where it is so recorded. He does not remember on which date his statement was recorded by police. Hence the above deposition of PW-2 proves on record that he had taken his Page 22 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
wife to Life Care Charitable Poly Clinic. He had given the money so that operation could be conducted on his wife. He had also went to purchase the medicines written by the accused person. He was present at the spot during the entire operation and not only that he had looked through the window and had seen that his wife was being operated upon. All the above conduct clearly shows that there was implied consent by the PW-2 to conduct operation upon his wife in which he actively participated. With such implied consent the preponderance of probabilities goes in favour of accused and that the signature Q-1 and Q-2 in Ex.PW20/E on the consent form are held to be done by PW-2 so that operation upon his wife Ms. Radha could be performed by accused person. Hence the case of the prosecution that PW-2 had not given consent is rejected and the accused has successfully proved by preponderance of probability in evidence of PW-2 that PW-2 had given consent to accused person to do the operation of Check Curettage on the patient/ deceased Radha.
12.6. From the above discussion it cannot be said that such kind of bodily injury was caused by accused No.1 to 3 on the deceased Radha by which her death was caused. When the Doctor at St. Stephen Hospital had given oral opinion to Page 23 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
PW-7 Ms. Usha that some medical instrument had caused some injury on the deceased and this opinion was not informed either by Doctor at St. Stephen Hospital or by PW-7 Ms. Usha to police officials in time nor the body was handed over for postmortem. Therefore it cannot be said that injury was caused on the deceased Ms. Radha by accused No.1 to 3 by some medical instrument due to which excessive bleeding had occurred consequently Ms. Radha had expired. In fact there was more than necessary time was available with St. Stephen Hospital which is about 3 hours from 7:15 PM to 10:20 PM to give necessary treatment to the patient/ Radha which was in the nature of giving blood to the patient immediately on urgent basis and to immediately repair such injury which was found by Doctor at St. Stephen Hospital as per deposition of PW-7. None of the above treatment was given by St. Stephen Hospital to the patient/ Radha and to the contrary even the proper record is not produced by St. Stephen Hospital having no basis with them in not producing such record. There is no basis of loss of record at St. Stephen Hospital if it was for the reason of incorrect preparation of record or subsequent preparation of record noticing that a police case have been registered. In fact as soon as the knowledge of injury had come to the Doctor at St. Stephen Page 24 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
Hospital then by pointing out such injury in writing and its nature it could have been said that whether it was relevant for the purpose of this case or not. In absence of such record it cannot be said that injury was caused upon the deceased Radha which can result into her death. The conduct of PW-2 by not taking body of the deceased to postmortem come into doubt. A question has arisen that why at all the deceased Radha had suffered a pain in abdomen and no cause was found for such pain by the prosecution. In fact this cause was not investigated and it could not be investigated for the reason that body of patient Ms. Radha was exhumed before conducting postmortem for the fault of PW-2 and PW-7 and also PW-15 the St. Stephen Hospital. In the text discussed above it has come out that the Check Curettage Operation can be done at any place in emergency condition. In the present case when the deceased Ms. Radha was undergoing abdomen pain continuously then the child in the womb had already expired. Bleeding P/B present. The product of conception was coming through. UT/AV of 8 week stage which is recorded in Ex.PW20/F at 12:00 Noon. Hence this shows that condition of the patient was serious and it was an emergent condition. It is not the case of the prosecution that it was not a medical emergency. In such view of the matter the prescribed medical Page 25 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
texts produced on record shows that Check Curettage Operation could be conducted upon the deceased. The Operation was conducted by accused No.3 who was a gynecologist. Contrary to the case of the prosecution PW-2 in cross examination at page 4 by learned Addl. PP for the State had denied that accused No.3 had performed the operation of check curettage on his wife / deceased Ms. Radha. Hence even the operation by accused No.3 is denied by PW-2 who keeps changing his statements from time to time.
12.7. The accused person had got DW-1 and DW-2 in their defence. DW-1 Dr. Neeta Sagar HOD of Department of Obstetrics and Gynecology who had deposed that incomplete abortion occur to a lady in case of hypertension, diabetes, thyroid, renal problem, consumption of chronic/ acute poisoning like lead or mercury and incomplete abortion also occur if mother consumes abortion pills. In case the patient comes with active bleeding with history of incomplete abortion then immediate check-curettage is undertaken which means taking out of dead fetus or its parts which remains inside the body of the mother. This process would be taken irrespective of availability of any specialized hospital. Witness relied upon Modi's medical jurisprudence and also on medical Page 26 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
Jurisprudence written by Parikh. If bleeding continues without operation then the patient will die within 45 minutes to 2 hours. If the patient comes with the history of DIC (Disseminated Intra Vascular Coagulation) then immediately blood had to be administered with fresh frozen plasma and platelet. If blood group is not known then O negative blood can be administered. In cross examination DW-1 has admitted that unless she personally see the place where process of check-curettage had been done till then she will not be in a position to say that whether it was a proper place or not. However operation can be performed if suction machine
- suction canula currete sims speculam and vollselum with drugs like oxetocin mithergin are present. In order to conduct MTP the clinic/ place has to be registered under MTP Act. It is deposed voluntarily that in case of emergency it can be done at any place of clinic by a qualified doctor MBBS/ MD/MS. A Doctor having a degree of BAMS and BUMS are not authorized to install the equipment and curettage procedure as alleged or to keep the medicines. In case of emergency also the BAMS or BUMS Doctors would immediately refer the patient to a qualified Doctor and they will not allow the patient to remain at his/ her place. Till the qualified Doctor reaches the vitals can be measured/ monitored by BUMS or Page 27 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
BAMS Doctor. It is answered to the Court Question that in case if a patient is in critical condition even at an unauthorized centre then DW-1 will definitely rush to such place to save the life of patient at the unauthorized centre. Hence from the above evidence of DW-1 it has come on record that accused No.1 and 2 were not qualified to conduct MTP process on the deceased Ms. Radha / wife of PW-2 however under certain conditions operation can be done at Life Care Poly Clinic.
12.8. As per deposition of PW-2 Sh. Billu accused No.1 had started operation at about 12:00 PM in presence of accused No.2 and a girl aged about 15 year. The operation was conclude at 2:00 PM. PW-2 had seen accused No.1 and 2 operating upon the deceased Ms. Radha and thereafter the patient was shifted to a room and her medical condition was normal. PW-2 then got certain medicines from market and gave them to accused persons. Then Ms. Radha the deceased started complaining pain in her abdomen and PW-2 started continuous massaging the legs of Ms. Radha. Accused No.2 Dr. Mukeem had administered some injections in the vein of the left hand of Ms. Radha after which the patient had developed swelling in her left hand. During this time glucose was also administered to the patient and some medicine was Page 28 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
given. Between 6-7 PM in the evening accused No.1 and 2 had asked PW-2 to take his wife to St. Stephen Hospital. PW-2 called his friend PW-4 Sh. Raju to come with a Maruti Van. Patient was shifted to St. Stephen Hospital in a Maruti Van. When the patient Ms. Radha had reached at St. Stephen Hospital then at that time her pulse was very low. At about 10:20 PM Ms. Radha was declared dead and the next morning the body was cremated. PW-2 on 29.05.2006 had seen on the display board at Life Care Nursing Home where it was written that "all kinds of operation are performed here". PW-2 has denied the suggestion that accused No.3 had performed operation on Ms. Radha on 27.05.2006. PW-2 did not identify accused No.3 in the Court and in this regard State had declared him hostile.
12.9. PW-8 Dr. R. N. Baishya the then Secretary, Delhi Medical Council had referred action against accused No.1 and 2 by Delhi Bhartiya Chikitsa Parishad as the clinic of accused No.1 and 2 was not registered with Delhi Medical Council. In inquiry it was found that patient Ms. Radha had expired at St. Stephen Hospital and no Doctor from St. Stephen Hospital was examined by the Committee. Sh. Soran Singh the father of the deceased and father in law of PW-2/ Sh. Billu had Page 29 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
complained before the Inquiry that PW-2 /Billu and his family members had administered some poison to the deceased. Soran Singh was not called in that Inquiry. It is admitted as correct that body of the deceased was not sent for postmortem. Ex.PW8/A is copy of the report. It was found in the report that accused No.1 and 2 did not have reasonable scientific competency in admitting the deceased Radha into their Poly Clinic since the Poly Clinic did not have adequate facilities for management of such clinical situation. Accused No.1 had failed to show a reasonable expertise in detecting early signs of DIC in the patient. PW-9 Dr. J. N. Mohanty had inspected the Life Care Charitable Poly Clinic on 18.07.2006 and there was no indication on the premises or on the display board except indicating the name of the clinic. The clinic was about 2 storey building. It is admitted as correct in cross examination by PW-9 that RMP can provide relief in a case of emergency during delivery irrespective of experience in obstetrics and gynecology.
12.10. PW-10 Dr. Farhat Umar from Delhi Bhartiya Chikitsa Parishad has deposed as Registrar. It is deposed that both the accused No.1 and 2 are registered with the Parishad. It is further deposed that the Doctors who are registered with Page 30 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
the Parishad are not required to get their Clinic/ Poly Clinic registered with the Parishad for their practice. The term integrated medicine is defined under Delhi Bhartiya Chikitsa Parishad Act.
12.11. PW-15 Dr. T. K. Cherian from Department of Obstetrics and Gynecology from St. Stephen Hospital who has deposed that on 27.05.2006 Ms. Radha was admitted in casualty around 7:15 PM with history of Hemorrhagic Shock referred by Life Care Charitable Poly Clinic. The patient was attended by Doctor on Duty. The patient was gasping for breath and resuscitation intubation was started on the patient immediately in the ICU. The patient had suffered immediate cardiac attack who was declared dead at about 10:00 PM. The patient had undergone an abortion at some clinic and sustained severe shock following uncontrolled bleeding. It has occurred due to DIC (Disseminated Intra Vascular Coagulation) which is a condition where all coagulation factors have been used up due to this disseminated coagulation. When there is continuous bleeding then body mechanism works to break down the bleeding but the factors are used up and cannot control bleeding which results in shock and death. PW-15 did not examine the patient and he cannot tell the exact cause of Page 31 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
death as no laboratory test were conducted in their hospital. His opinion is based on medical record is Ex.PW15/A. His letters and comments to IO are letters Ex.PW15/B and Ex.PW15/C. He had identified the signatures of Director, St. Stephan Hospital Dr. Mathew Verghese in the letter Ex.PW15/X. 12.12. The deposition of PW-15 has to be read looking into the immediate need of first line of treatment to the patient admitted. In this case it is incumbent on the prosecution to show that what was the first line of treatment required to be given to the patient / deceased when she was first admitted at St. Stephen Hospital keeping in view her medical condition deposed by PW-15. PW-15 has deposed that the patient / deceased had already suffered DIC (Disseminated Intra Vascular Coagulation). In cross examination it is deposed by PW-15 as correct that the patient under such severe shock should have been given blood transfusion. It takes 15-20 minutes to ascertain the blood group of a patient. As per record brought by PW-15 the patient/ deceased did not go under blood transfusion. The patient was received at St. Stephen hospital at 7:15 PM and the blood transfusion should have been completed by 7:30 PM as per deposition of PW-15.
Page 32 of 67 SC No.27191/2016 FIR No. 237/2006P. S. Subzi Mandi State vs. Dr. Seema and Ors.
However as per record brought by PW-15 no blood transfusion was administered. To the Court Question PW-15 has replied that blood sample was taken from the patient which was sent for testing which could not be carried out because the blood sample was haemolysed which means the blood sample was not in a state to be tested as it lost its original biological form. However to such hemolysion no evidence is produced by PW-15 and it is deposed that there is no report on record brought by him regarding such pathological finding. It is deposed voluntarily that the same is mentioned in death summary. It is noted that it should not be first part of death summary but it must be first part of some report to that effect and only thereafter on the basis of such report it could have been entered into death summary. This report is withheld by PW-15 and therefore it appears that to save himself PW-15 has relied on such pathological finding having no basis on record.
12.13. It is further deposed by PW-15 as correct that in such a situation when pathological finding could be made out then 'O' Negative blood group can be administered to the patient. It is deposed by PW-15 that there was no sufficient time in this case to make such blood group available. The Page 33 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
above deposition of PW-15 appears only to save himself keeping in view his further deposition that he does not know if such blood group was available in the hospital at that point of time. It is further deposed by PW-15 as correct that in such emergency condition fresh Frozen Plasma can be administered. It is deposed that in his opinion it cannot be administered without lab test. It is not disclosed that what were the requirements of testing it in lab and PW-15 is deposing merely on the basis of conjunctures for the reason that no test of fresh Frozen Plasma was conducted at St. Stephen Hospital. It is deposed by PW-15 that patient was admitted in the state of irreversible shock. Hence as per own deposition of PW-15 the patient needed urgent and immediate medical attention which was administration of 'O' Neg. blood or administration of fresh Frozen Plasma. The patient had expired at 10:20 PM in the ICU. From 7:15 PM till 10:20 PM no blood was administered to the patient nor any fresh Frozen Plasma was administered which was in a immediate and urgent need and first line of treatment. The St. Stephen Hospital/PW-15 had allowed 3 hours to pass by without giving any first line of treatment to the patient despite of admitting that the patient was in a state of irreversible shock. Now it has to be seen that whether in such 3 hours if such first Page 34 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
line of treatment is given to the patient then the patient could have been conveniently revived.
12.14. The PW-15 in cross examination at page 3 has deposed that it cannot make out from the document brought by him the name of the Registrar/ Doctor on duty who prepared MLC and death summary as the incident had taken place 5 years back. He cannot say when the MLC was prepared. There is Court Observation in the evidence that the MLC referred is actually on 2nd or 3rd page of Ex.PW15/A which is history of the patient and therefore the PW-15 has not even produced complete record of the patient. He cannot tell the name of duty Doctor which shows that he has come to depose in the case even without proper verification of the facts and therefore has deposed in a casual manner. Even if the incident had taken place 5 years back it is not the deposition of PW-15 that this record is not available with St. Stephen Hospital. Hence correct and complete record to ascertain the truth is not produced by PW-15. PW-15 cannot depose that who had signed the MLC. It is admitted as correct that no date below the signature is mentioned in the sheet of the patient. Though PW-15 has denied to the suggestion that the patient had died due to negligence on the part of Doctors at Page 35 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
St. Stephen Hospital. However the facts came above shows that the Doctors at St. Stephen Hospital has failed to act to the urgent and immediate need of the patient.
12.15. Further PW-15 cannot explain that why the practice of postmortem in this case of unnatural death is not followed to find out cause of death. It is deposed by PW-15 that in medico legal cases they make out notings on case history and take the signature of attendants whereas he has no explanation to submit that why this practice was not followed in this case by the attending Doctor. It is deposed by PW-15 that the attending Doctor did not consider it a medico legal case however there is no basis with PW-15 to depose such consideration about the attending Doctor when he is not even aware about the name of the attending Doctor. The conduct of PW-15 shows that he is only trying to save St. Stephen Hospital and its attending Doctors by making such depositions in the absence of record of the facts which are neither seen nor in knowledge of PW-15. In such circumstances of the case it is held that prosecution has failed to prove the second ingredient of Section 304 IPC that death of Ms. Radha the deceased had occurred by the act of accused person.
Page 36 of 67 SC No.27191/2016 FIR No. 237/2006P. S. Subzi Mandi State vs. Dr. Seema and Ors.
12.16. The third ingredient the prosecution has to prove beyond reasonable doubt is that accused person had intention to cause death or such bodily injury likely to cause death or there was such knowledge on the part of the accused that the bodily injury is such that it is likely to cause death. The facts and law discussed above under previous paras are equally applicable to the third ingredient and the same are not repeated herein for the sake of brevity. It is already held that the prosecution had failed to prove that the death had occurred due to act of the accused. Injury is not proved on Ms. Radha by the act of the accused nor it is proved on record that the accused had knowledge that by performing such check curettage operation such kind of bodily injury is caused that it is likely to cause death. Hence both Section 304-I and Section 304-II of IPC remained unsatisfied in the present case. In fact as per Ex.PW20/F opinion was formed by the accused person at 6:30 PM to transfer the patient at higher Medical Centre and by 7:15 PM the deceased Ms. Radha had reached at St. Stephen Hospital. There was ample time with St. Stephen Hospital between 7:15 PM to 10:20 PM to save the patient. Much important time is seen to have been wasted at St. Stephen Hospital. There was no investigation on the part of the prosecution that why in this time St. Stephen Hospital Page 37 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
could not have saved the victim. When ample time was available to save the patient then it cannot be said that the accused person had acted in such manner that death of Ms. Radha would definitely be caused. In fact the patient in due time was brought to St. Stephen Hospital and there was sufficient time to save the deceased. In fact it appears that no treatment was given to the patient at St. Stephen Hospital for such 3 hours. Therefore it cannot said that such intention was with the accused to cause death of Ms. Radha / deceased and in the absence of which it is held that the prosecution has failed to prove the third ingredient of Section 304-I or 304-II of IPC. Accordingly accused No.1 is acquitted from the offence under Section 304 IPC.
13. Accused No.1 and 2 were further charged with Section 417/34 IPC claiming themselves as Allopathic System Medical Practitioner and thereby cheating the victim and complainant Billu. Section 417 IPC outlines the punishment for the act of cheating defined under Section 415 IPC. The necessary ingredients were laid down in citation Tilak Raj vs. State of Himachal Pradesh (06.01.2016 - SC) :
MANU/SC/0010/2016=Neutral Citation: 2016 INSC 21 by the Hon'ble Supreme Court of India. The necessary ingredients of Page 38 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
which are reproduced hereinasunder:
Tilak Raj vs. The State of Himachal Pradesh (06.01.2016 - SC) : MANU/SC/0010/2016=Neutral Citation: 2016 INSC 21
21. As far as conviction of the Appellant Under Sections 417 and 506 part I of Indian Penal Code is concerned, a close scrutiny of evidence of the prosecutrix (PW 2) along with other prosecution witnesses is done by this Court. Section 417 of Indian Penal Code prescribes punishment for the offence of Cheating as defined Under Section 415 of Indian Penal Code. Section 415 of Indian Penal Code reads thus:
415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". Explanation.--A dishonest concealment of facts is a deception within the meaning of this section.
The ingredients required to constitute the offence of Cheating have been discussed by this Court in the case of Ram Jas v. State of U.P. MANU/SC/0173/1970 : (1970) 2 SCC 740 as under:
(i) there should be fraudulent or dishonest inducement of a person by deceiving him;
(ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or
(b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii) in cases covered by (ii)(b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.
A careful reading of evidence on record clearly shows that there is no evidence against the Appellant from which it can be Page 39 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
conclusively inferred by this Court that there was any fraudulent or dishonest inducement of the prosecutrix by the Appellant to constitute an offence Under Section 415 of Indian Penal Code. For conviction of the Appellant for above said offence, it is important that all the necessary ingredients constituting an offence under the said Section must be proved beyond reasonable doubt. In the instant case, the Appellant cannot be convicted for the offence of cheating punishable Under Section 417 of Indian Penal Code as the prosecution has failed to prove all ingredients of the said offence beyond reasonable doubt.
13.1. The law and evidence already discussed above in the a body of judgment is equally applicable under the provision of law discussed hereunder and the same are not repeated herein for sake of brevity.
13.2. Now it has to be seen that whether the accused person were medically qualified to perform such procedure being qualified as BAMS Doctor. Dr. Seema and Dr. Mukeem Ahmed accused No.1 and 2 are charged with the offence under Section 417/34 IPC in that both of them running the Life Care Nursing Home by impersonating as medical practitioners of Allopathy or integrated system of medicine and thereby so misrepresenting the complainant Billu and his wife since deceased and have cheated them on 27.05.2006. In the complaint Ex.PW2/A1 to A9 on the basis of which FIR was registered mentions at para No.2 that on 27.05.2006 the Page 40 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
wife of complainant had abdomen pain around 11:00 AM. The complaint took his wife to Life Care Nursing Home. It is further stated that accused No.1 after examination of wife of complainant had told to complainant that the child in the womb had expired due to which she was suffering from abdomen pain. Accused No.1 had further told that the patient need immediate surgical operation to bring out the dead-body of the child from the womb failing which there will be danger to the life of the patient. Accused No.1 and accused No.2 has informed that the total expenditure would Rs.15,000/- for the said operation. The complainant gave Rs.8000/-. The accused person had administered some medicines and injections on the wife of the complainant. Thereafter the wife of the complainant was taken to operation theater at the 1 st floor of the said nursing home around 1:00 PM and she remained at Life Care Poly Clinic till 6:00 PM -7:00 PM. Accused No.1 alongwith her husband accused No.2 in presence of a nurse conducted the said surgery operation and throughout such time the complainant was sitting outside the said operation theater. After that time accused No.1 came outside and asked the complainant to take his wife at some good hospital to save her life. The complainant had seen his wife lying on the bed who was bleeding profusely. Hence according to complainant Page 41 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
accused No.1 and 2 had got operated upon his wife though they were not qualified to do the operation and they have misrepresented that such operation can be done by them which pertains to the field of allopathy or integrated system of medicine.
13.3. PW-1 has deposed that it is required to take opinion from Delhi Bhartiya Chikitsa Parishad if accused No.1 and 2 were qualified to perform surgical operation/ clinical process as performed in this case. Unregistered establishment cannot perform MTP. PW-1 had forwarded degree and registration certificate of accused No.3 and it is deposed that accused No.3 was qualified to perform MTP or surgical operation. Her opinion is dated 04.07.2006 vide Ex.PW1/A. The attested copy of relevant part of MTP Act is Ex.PW1/B. In cross examination it is deposed that she did not visit Life Care Charitable Poly Clinic before preparing her report nor any notice was issued to any of the accused. He is not aware if any registration or licence is required to run a medical clinic.
13.4. PW-2 has deposed in the same terms of his complaint. It is deposed that accused No.1 had stated to PW-2 Page 42 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
that operation will commence at 12:00 noon. At the time of operation accused No.1 and 2 were present with a attendant girl aged about 15 years. Operation theater was situated at 1 st floor and observation was conducted till about 2:00 PM. PW-2 also went upstairs and he had seen his wife through a small window on whom accused No.1 and 2 were seen operating upon. After operation his wife was shifted in a room and her medical condition was normal. PW-2 had seen on 29.05.2006 that on the board of Nursing Home it was written that "all kind of operations are performed here". PW-2 had taken photographs of the board. After expiry of his wife he had given statement before learned MM. Learned Addl. PP for the State had cross examined PW-2. It is deposed that he did not tell the police that during operation another lady Doctor/ accused No.3 had come to Nursing Home who had performed the operation. The operation was performed on 27.05.2006. In the next para it is deposed by PW-2 as wrong to suggest that accused No.3 had performed operation upon his wife who was called by accused No.1 and 2.
13.5. PW-3 Ms. Meenakshi the said Nurse/ attendant at Life Care Charitable Poly Clinic has turned hostile to the case of the prosecution. PW-4 Sh. Raju has turned hostile to the Page 43 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
case of the prosecution. It is denied that in his presence accused No.1 and 2 with one Nurse had performed operation on the deceased. It is deposed that he had never seen accused No.1 though he had seen the girl / Nurse aged about 15-16 years in the said clinic. PW-5 Sh. Sanjay @ Pappu had taken photographs of Life Care Charitable Poly Clinic on 10.06.2006. He had taken 16 photographs Ex.PW5/1 to 16 (colly.) and negatives of which on record are Ex.PW5/A1 to A-16 (colly.). He had taken photographs inside the clinic. He does not remember the complete address of the clinic. In the photograph it is seen that accused No.1 has written in front of her name as BAMS and name of accused No.3 is also written with mentioning of degree as MBBS with MS (Gynecology). Medical degree is not mentioned / not visible below the name of accused No.2 whereas Doctor is written in front of his name. Name of other Doctors is also written. The facility board mentions that X-ray, Ulrasound, ECG, Abortion, Delivery, Emergency Operations of all kind, Hair transplantation, Cosmetic Surgery and Pathological examination are also conducted at the said Poly Clinic. The present case is restricted to aspects whether the accused person could have performed Check Curettage Procedure on patient Ms. Radha and whether it was so represented to the Page 44 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
complainant / PW-2. Keeping in view the deposition of PW-2 discussed above and conduct of accused No.1 and 2 that immediate operation is required to be conducted upon deceased/ Ms. Radha and further conduct of taking deceased Ms. Radha inside the room of the Poly Clinic and conducting further medical procedure show that it was represented to PW-2 by accused No.1 and 2 that such medical procedure could be conducted upon Ms. Radha/ deceased. It is also substantiated by the fact of demand of Rs.15,000/- from PW-2 and receipt of Rs.8000/- from PW-2 which remains unimpeached in the evidence of PW-2. The suggestion is given to PW-2 in cross examination that no money of Rs.8000/- was deposited or paid to accused No.1 had no basis as without taking money it is against the common course of nature that accused No.1 and 2 would be administering medicines on the deceased Radha or that she would be operated upon. Hence the prosecution has successfully proved that the accused No.1 and 2 have represented to PW-2 that Check Curettage Procedure could be conducted upon the wife of PW-2 at Life Care Nursing Home.
13.6. Hence prosecution has successfully proved that accused No.1 and 2 were not competent to do MTP Operation Page 45 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
on the patient. It has also come in evidence in defence by DW-1 Dr. Neeta Sagar dated 17.04.2014 in cross examination by Learned APP for the State that the MTP can be done only by qualified Doctor who is MBBS or MD/MS. A Doctor who has degree of BAMS and BUMS are authorized to install the equipments and curettage procedure as well as keep the medicines. It is further admitted as correct that vital and bleeding can be monitored by BUMS as well as BAMS Doctor while the process has already taken place by the qualified Doctor i.e. MBBS or MD/MS.
13.7. In the present case the Check Curettage Procedure had been conducted on the patient Ms.Radha. As per the case of the prosecution the said procedure was conducted by accused No.3 Dr. Swapnil Sandhya. To the contrary PW-2 had denied at page 4 of his cross examination that accused No.3 had conducted operation upon his wife the deceased. The complaint at para No.5 filed by PW-2 mentions that his wife the deceased was taken to 1 st floor of the Nursing Home at about 1:00 PM where she had stayed till 6:00 PM -7:00 PM. The evidence of the prosecution vide Ex.PW20/F shows that the gynecologist accused No.3 was informed at 12:10 PM and the operation was conducted after 12:28 PM. PW-2 at page 4 Page 46 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
of his cross examination was confronted with Ex.PW2/E at point A to A where it is recorded that another lady Doctor besides Dr. Seema had come to the Nursing Home and she had performed the Operation. Dr. Swapnil had already reached at the Nursing Home by 12:28 PM after which the operation was performed which shows that Dr. Swapnil was present at the time when the operation was performed. Had she been not present then there was no meaning in Ex.PW20/F of recording of signature of accused No.3 Dr. Swapnil at 12:28 PM after which the operation was performed. Hence there is doubt in the case of the prosecution that operation was performed by accused No.1 and in fact it was performed by accused No.3. Accused No.3 is a qualified MS Gynecologist and as per the prosecution witness she was competent to perform the operation of MTP on the deceased. The photograph of the Life Care Poly Clinic are Ex.PW5/1 to Ex.PW5/16 which also record the name of accused No.3 Dr. Swapnil Sandhya who is MS Gynecologist. The operation was also performed by accused No3 as per evidence which has come on record. It has also come on record that accused No.1 and 2 could have monitored the patient which they had done in this case. Therefore the evidence has come on record that accused No.1 and 2 have not misrepresented the PW-2 Page 47 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
that emergency operation can be done at Life Care Nursing Home Poly Clinic by a qualified Medical Practitioner in Allopathic System and which in fact was performed by accused No.3. Accused No.3 was called at Life Care Nursing Home before conducting the operation. Hence the intentional inducement to PW-2 on behalf of accused person is absent. Such representation by accused No.1 and 2 that operation can be performed at Life Care Poly Clinic read with the mentioning of name of accused No.3 on the board outside the Life Care Poly Clinic vide Ex.PW5/1 to Ex.PW5/16 shows that name of Dr. Swapnil Sandhya / accused No.3 was disclosed to PW-2 even before the commencement of MTP Operation. Hence there is no evidence on the basis of which it can be said that there was fraudulent and dishonest inducement on PW-2 by the accused No.1 and 2 to constitute an offence under Section 417 IPC and therefore it is held that accused No.1 and 2 cannot be convicted under Section 417 IPC. Accordingly accused No.1 and 2 are held acquitted of the offence under Section 417/34 IPC.
14. Accused No.3 Dr. Swapnil Sandhya is charged with Section 304A IPC the necessary ingredients of which are reproduced hereinasunder:
Page 48 of 67 SC No.27191/2016 FIR No. 237/2006P. S. Subzi Mandi State vs. Dr. Seema and Ors.
State of Punjab vs. Balwinder Singh and Ors. (06.01.2012 - SC) :
MANU/SC/0005/2012=Neutral Citation: 2012 INSC 9
6. It is not in dispute that the trial Court on appreciation of evidence and accepting the prosecution witnesses convicted the Respondents for an offence under Section 304A. The said section reads as under:
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.
7. Section 304A was inserted in the Penal Code by the Indian Penal Code (Amendment) Act 27 of 1870 to cover those cases wherein a person cause the death of another by such acts as are rash or negligent but there is no intention to cause death and no knowledge that the act will cause death. The case should not be covered by Sections 299 and 300 only then it will come under this section. The section provides punishment of either description for a term which may extend to two years or fine or both in case of homicide by rash or negligent act. To bring a case of homicide under Section 304A Indian Penal Code, the following conditions must exist, namely,
1) There must be death of the person in question;
2) the accused must have caused such death; and
3) that such act of the accused was rash or negligent and that it did not amount to culpable homicide.
14.1. The law and evidence already discussed above in the the previous para and body of judgment is equally applicable under the provision of law discussed hereunder and the same is not repeated herein for sake of brevity.
14.2. The first ingredient under Section 304A IPC is that Page 49 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
death of a person is caused which is already held proved above in the judgment under Section 304 IPC and the hence the first ingredient of the above provision of law has stood satisfied.
14.3. The second ingredient is that the accused has caused such death. As per the case of the prosecution accused No.3 had conducted Check Curettage Procedure on Ms. Radha despite knowing that the Nursing Home was not having proper space, equipments and trained man-power and thereby accused No.3 was in negligent in leaving Ms. Radha the deceased under care of untrained medical practitioners and not recommending her removal to a hospital with proper medical facilities.
14.4. Hence the prosecution first must satisfy that Life Care Poly Clinic / Hospital/ Maternity Centre was not having proper space, equipments and further that there was requirement of such trained man-power. PW-2 has nowhere deposed that what was the deficiency in proper space, equipments and further that there was requirement of such trained man-power. PW-3 Ms. Meenakshi working at Life Care Charitable Poly Clinic has not deposed about absence of proper space, equipments and further that there was requirement of such trained man-power. Even during cross examination by learned Addl. PP for the Page 50 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
State there is no evidence that what was proper space, equipments and further that what exactly was requirement of such trained man-power. In fact it proves that what all facilities were available at Life Care Charitable Poly Clinic. It does not help the case of the prosecution until it proves that what was the deficiency in proper space, equipments and further that there was requirement of such trained man-power. An expert evidence is also required to prove such deficiency. Absence of registration to run such Poly Clinic is a different aspect than availability of proper space, equipments and requirement of such trained man-power. PW-8 has deposed as correct that one Soran Singh father of the deceased Radha had alleged that his son in law Billu/ PW-2 and his family members had administered some poison to the deceased Radha. It is deposed by PW-9 in cross examination as correct that RMP irrespective of experience in obstetric and gynecology can provide relief in case of an emergency during delivery. The IO/PW-20 Inspt. Vijay Kumar has failed to depose about deficiency in proper space, equipments and further that there was requirement of such trained man-power. Hence there is absence of any evidence on the part of the prosecution by which it can be inferred that the Life Care Charitable Poly Clinic was not having proper space, equipments and further that there was Page 51 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
requirement of such trained man-power. Further, if the operation was conducted by accused No.3 who was available to conduct operation then in such a circumstance when operation was allegedly done at 1:00 PM and the qualified gynecologist accused No.3 who had conducted the operation was available at 12:28 PM then it cannot be said that trained medical practitioner was not available. The case of the prosecution is that accused No.3 was negligent in leaving the patient under the care of untrained medical practitioner whereas to the contrary DW-1 has deposed to the suggestion of learned Addl.PP for the State as correct that vital and bleeding after operation can be monitored by BUMS as well as by BAMS when the process had already taken place by qualified MBBS Doctor or MD/MS. Thereafter when the aftercare was left with accused No.1 and 2 by accused No.3 then it cannot be said that accused No.3 was negligent under Section 304A for such aftercare of deceased Ms. Radha.
14.5. It is further the case of the prosecution that accused No.3 had not dispatched the patient / Ms. Radha the deceased in due time for higher medical centre which is St.Stephen Hospital in this case. However what is due time has not been explained and what time the patient should have been discharged for Page 52 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
higher medical centre is also not proved on record. When the deceased Ms. Radha had reached at 7:15 PM at St. Stephen Hospital who had expired at 10:20 PM then there was time availability for more than 3 hours to revive the patient/ Ms. Radha. The prosecution has nowhere proved that what exactly was time required to revive the patient at St. Stephen Hospital to see that if there was deficiency on the part of accused No.3 to release the patient for St. Stephen Hospital. The documents from St. Stephen Hospital are proved by PW-15 and by Ex.,PW15/C the patient had not recordable BP, pulse. No evidence has come on record what life saving measure were taken by St. Stephen Hospital when she was transferred to ICU. No laboratory investigation report was filed. What was done at ICU is also not clear from the evidence of PW-15. The precious available time of 3 hours was allowed to be passed at St. Stephen Hospital without taking any effective measures. It was held in case titled R. Jairam Iyer vs. State of Chhattisgarh (08.07.2015 - CGHC) : MANU/CG/0064/2015 IN Criminal Misc. Petition No. 765 of 2010 Decided On: 08.07.2015 that the standard of negligence required should be so high to be described as gross negligence or rashlessness. There must be such disregard of life and safety of patient as to amount to crime against the State. A case of occupational negligence is different Page 53 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
from one of the professional negligence. As long as Doctor follows acceptable practice of the medical profession then criminal negligence cannot be imputed. The relevant para No.15 to 19 are reproduced hereinasunder:
R. Jairam Iyer vs. State of Chhattisgarh (08.07.2015 - CGHC) :
MANU/CG/0064/2015 IN Criminal Misc. Petition No. 765 of 2010 Decided On: 08.07.2015
15. The determination of the objection so raised leads me to the next question regarding criminal medical negligence governed by Section 304-A of the Indian Penal Code, which reads thus:-
"304-A. 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."
16. The essential ingredients of offence under Section 304-A of the Indian Penal Code are as under:-
1. Accused caused the death of any person;
2. Death was caused by the accused doing any rash act; or such death was caused by the accused doing any negligent act; and
3. Such a death did not amount to culpable homicide.
17. In order to prove criminal negligence, the prosecution must prove the following ingredients:
(i) Exercise of duty to take care;
(ii) breach of duty to take care causing death; and
(iii) breach of duty must be characterized as gross negligence.
18. At this stage, it would be appropriate to notice the relevant law on the subject, which are as under:-
18.1 In the matter of Dr. Suresh Gupta v. Govt. of NCT of Delhi and another MANU/SC/0579/2004 : (2004) 6 SCC 422, Their Page 54 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
Lordships of the Supreme Court has held that in order to fix the criminal liability on a doctor or surgeon, the standard of negligence required to be proved should be so high as can be described as "gross negligence" or "recklessness" and observed as under:
"20. For fixing criminal liability on a doctor or surgeon, the standard of negligence required to be proved should be so high as can be described as "gross negligence" or "recklessness". It is not merely lack of necessary care, attention and skill. The decision of the House of Lords in R. v. Adomako (1994) 3 All ER 79 (HL) relied upon on behalf of the doctor elucidates the said legal position and contains the following observations:
"Thus a doctor cannot be held criminally responsible for patient's death unless his negligence or incompetence showed such disregard for life and safety of his patient as to amount to a crime against the State."
18.2 The correctness of the aforesaid judgment came to be considered by the Supreme Court in case of Jacob Mathew v. State of Punjab and another MANU/SC/0457/2005 : (2005) 6 SCC 1, wherein Their Lordships of the Supreme Court considered elaborately various aspects of the medical negligence on the part of medical professional and summed up their conclusion in paragraph 48 of the report which states as under:-
"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".
(2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or Page 55 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
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, 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 9, WLR at p. 586 holds good in its applicability in India.
Page 56 of 67 SC No.27191/2016 FIR No. 237/2006P. S. Subzi Mandi State vs. Dr. Seema and Ors.
(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 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."
18.3. Similarly, in the matter of Kusum Sharma & others v. Batra Hospital & Medical Research Centre and others MANU/SC/0098/2010 : (2010) 3 SCC 480, their Lordships of the Supreme Court have considered earlier decision on the question of medical negligence on the part of the doctor and held that it is necessary that death should be direct result of the rash & negligent act of the accused and it was further held that the doctor has discretion in choosing treatment in which he proposes to give treatment to the patient and culled out the following principles, summed up in paragraph 89 of the report which reads thus:-
Page 57 of 67 SC No.27191/2016 FIR No. 237/2006P. S. Subzi Mandi State vs. Dr. Seema and Ors.
"89. On scrutiny of the leading cases of medical negligence both in our country and other countries specially the United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well-know principles must be kept in view:
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 is 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 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 Page 58 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
performs his duties with reasonable sill 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 unnecessarily 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 welfare of the patient have to be paramount for the medical professionals."
18.4 In the case of Malay Kumar Ganguly v. Dr. Sukumar Mukherjee & others MANU/SC/1416/2009 : (2009) 9 SCC 221, Their Lordships of the Supreme Court have again reiterated that negligence must be of a gross or a very high degree to amount to "criminal negligence" by observing as under:-
"178. Criminal negligence is the failure to exercise duty with reasonable and proper care and employing precautions guarding against injury to the public generally or to any individual in particular. It is, however, well settled that so far as the negligence alleged to have been caused by medical practitioner is concerned, to constitute negligence, simple lack of care or an error of judgment is not sufficient. Negligence must be of a gross or a very high degree to amount to criminal negligence.
179. Medical science is a complex science. Before an inference of medical negligence is drawn, the court must hold not only the Page 59 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
existence of negligence but also omission or commission on his part upon going into the depth of the working of the professional as also the nature of the job. The cause of death should be direct or proximate. A distinction must be borne in mind between civil action and the criminal action.
181. 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."
18.5. Very recently, in the case of P.B. Desai v. State of Maharashtra & another MANU/SC/0937/2013 : (2013) 15 SCC 481, Their Lordships of the Supreme Court observed as under:-
"59. While the two experts might differ on the level of risks involved in the critical surgical operation but for the sake of life which any way was struggling to live, is a mild respite to doctors in their decision to operate the patient or not. A long catena of medical cases on this theme does provide relief to doctors. One of the many indispensable duties which is of utmost importance is that when such a decisional shift is taken by a doctor against the line of renowned doctor who had earlier treated the patient, that doctor must exercise required personal attention to the patient during the operation. On this aspect, the Medical Council of Maharashtra, while reprimanding, reasoned that Dr. P.B. Desai, instead of merely advising surgery which was in spite of the opinion of cancer specialists from USA, ought to have voluntarily taken more interest and personally seen the situation faced by Dr. A.K. Mukherjee which he did not do so. Since the appellant has not challenged the findings of the Medical Council who had found him guilty of misconduct, those findings do provide the legal fortification and along with the oral and documentary evidence adduced before the court below speaks much on the professional duty which the appellant owed to the patient.
61. No doubt, in the present case the appellant not only possesses requisite skills but is also an expert in this line. However, having advised the operation, he failed to take care of the patient. Thereafter, at various stages, as observed by the courts below, he was held to be negligent by the Maharashtra Medical Council and Page 60 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
thus found to be guilty of committing professional misconduct. Thus, it was the appellant's "duty" to act contractually, professionally as well as morally and such an omission can be treated as an "act". We again clarify that undoubtedly, within the realm of civil liability, the appellant has breached the well essence of "duty" to the patient."
18.6. Quite recently, in the matter of A.S.V. Narayanan Rao v. Ratnamala and another MANU/SC/0931/2013 : (2013) 10 SCC 741, the Supreme Court while following the principles of law laid down in Jacob Mathew (supra) has held that in order to prosecute the medical professional, the negligence must be "gross" by holding as under:-
"15. The High Court unfortunately overlooked this factor. We, therefore, are of the opinion that the prosecution of the appellant is uncalled for as pointed out by this Court in Jacob Mathew case that the negligence, if any, on the part of the appellant cannot be said to be "gross". We, therefore, set aside the judgement under appeal and also the proceedings of the trial court dated 11.12.2006."
19. In light of the principles of law enunciated by their Lordships of the Supreme Court in above-stated judgments, it is transparently clear that in order to prosecute and punish a medical professional under Section 304-A of Indian Penal Code negligence contemplated is "gross negligence" that is negligence of very high degree and as such expression "rash or negligent act" occurring in Section 304-A IPC has to be read as "gross negligent act".
14.6. In such circumstances of the case it cannot be said that there was criminal rashness and negligence on the part of accused No.3 such that it can qualify under Section 304A IPC. Hence it is held that the prosecution has failed to satisfy the ingredients of Section 304A IPC.
15. Dr. Seema /accused No.1 and Dr. Mukeem Ahmed/ Page 61 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
accused No.2 were also charged under Section 6/34 of Delhi Nursing Home Registration Act, 1953 for running Life Care Nursing Home without having any proper space, medical facilities, operation theater, Ambulance. The necessary provisions of law/ingredients are reproduced hereinasunder:
The Delhi Nursing Homes Registration Act, 1953 N.O .VI OF 1953.22nd April, 1953.
3. Prohibition to carry on nursing home without registration :-
No person shall carry on a nursing home unless he has been duly registered in respect of such nursing home and the registration in respect has not been cancelled under Section 7 : Provided that nothing in this section shall apply in the case of a nursing home which is in existence at the date of the commencement of this Act, for a period of three months from such date or if an application for registration is made within that period in accordance with the provisions of Section 4 until such application in finally disposed of.
6. Penalty for non-registration :-
Whoever contravenes the provisions of Section 3 shall on conviction, be punished with fine which may extend to five hundred rupees, or, in the case of a second or subsequent offence, with imprisonment for, a term which may extend to three months or with fine which may extend to five hundred rupees or with both. .................
Section 34 in The Indian Penal Code, 1860
34. Acts done by several persons in furtherance of common intention.--
When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
Page 62 of 67 SC No.27191/2016 FIR No. 237/2006P. S. Subzi Mandi State vs. Dr. Seema and Ors.
15.1. The main contention on behalf of the accused No.1 and 2 is that the present Court has no jurisdiction to try the offence under Section 6 of Delhi Nursing Home Registration Act, 1953. It is submitted that it is only the local authority which can take cognizance or action under the provision of Delhi Nursing Home Registration Act, 1953. The offence if proved under Section 6 of Delhi Nursing Home Registration Act, 1953 provides for penalty for contravention of Section 3 of the same Act i.e. the penalty for violation of prohibition. Penalty can be imposed on conviction and there is enhanced penalty for 2nd or subsequent offence. It is noted that Section 14 provides for the Court competent to try offence under this Act. It provides that no Court inferior to that of Magistrate of First Class shall try any offence punishable under this Act. Hence the jurisdiction of the Court is held not specifically barred by the Act and the jurisdiction is provided in the Court only without any involvement of any local body/ authority. In such circumstances of the case when the remaining connected offence are tried before the present Court then the offence of smaller magnitude connected to the case can also be tried before the present Court. In these circumstances of the case the above claim of non-existence of jurisdiction by accused No.1 and 2 is Page 63 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
found baseless and stands dismissed.
15.2. On the face of it in view of the deposition by PW-1 that Life Care Charitable Poly Clinic was not registered under MTP Act whose cross examination remains unimpeached and inrebutted in material aspect shows that the Life Care Charitable Poly Clinic was a unregistered Clinic. It is also so deposed by PW-2. PW-8 Dr. Arya Basishya records that two Doctors who are accused No.1 and 2 were not registered with Delhi Medical Council. PW-9 Dr. J. N. Mohanty has proved that the Life Care Charitable Poly Clinic was running without registration. The owner of the Poly Clinic was asked vide letter Ex.PW9/C to supply copy of certificate of registration in reply to which accused No.2 sent a letter Ex.PW9/D and no such certificate of registration of provided. Vide Ex.PW9/F directions were also given to accused No.2 to close the Nursing Home activities till Nursing Home was registered with Directorate of Health Services. Accused No.1 and 2 had also failed to produce any document before PW-20 that the Life Care Charitable Poly Clinic was registered under a certificate. Since PW-9 has proved that ownership of Life Care Poly Clinic was with accused No.2 Dr. Mukeem Ahmed. Notice Ex.PW9/C was given to accused No.2 by PW-9 reply to which by accused Page 64 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
No.2 is Ex.PW9/D. Vide Ex.PW9/D accused No.2 admitted ownership of Life Care Charitable Poly Clinic and also that accused No.2 is running it. Hence it is held that the prosecution witness has successfully proved that accused No.2 has been operating Life Care Charitable Poly Clinic without having any valid registration under Delhi Nursing Homes Registration Act, 1953 and therefore accused No.2 is held guilty under Section 6 of Delhi Nursing Home Registration Act, 1953 read with Section Section 34 IPC. Hence accused No.2 Dr. Mukeem Ahmed is convicted under Section 6 of Delhi Nursing Home Registration Act, 1953. Section 34 IPC is held not applicable as ownership of Life Care Charitable Polyclinic is not proved with accused No.1.
16. In view of the discussion held above it is held that the prosecution has failed to prove that accused No.1 Dr. Seema has committed offence under Section 304 IPC and further that accused No.1 Dr. Seema and No.2 Dr. Mukeem Ahmed have committed the offence punishable under Section 417/34 IPC. It is further held that the prosecution has failed to prove that accused No.3 Dr. Swapnil Sandhya has committed the offence under Section 304A IPC. Hence accused persons namely Dr. Seema, Dr. Mukeem Ahmed and Dr. Swapnil Sandhya are Page 65 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
acquitted of the offence charged against them and it is held that prosecution has failed to prove the charge under Section 304/304A/417/34 IPC levelled against the accused persons namely Dr. Seema, Dr. Mukeem Ahmed and Dr. Swapnil Sandhya. Accordingly, accused persons namely Dr. Seema, Dr. Mukeem Ahmed and Dr. Swapnil Sandhya stand acquitted under Section 304/304A/417/34 IPC. Earlier personal bonds are cancelled and sureties are discharged and documents, if any, be returned to the sureties and endorsement on security documents is allowed to be de-endorsed only in respect of accused No.1 and 3. In terms of Section 437A Cr. PC, accused persons have furnished their bail bonds as directed which will be in force for period of six months from the date of this judgment. Case property be confiscated to the State.
17. However, it is held that the prosecution has successfully proved on record that the accused No. 2 Dr. Mukeem Ahmed have committed the offence under Section 6 Delhi Nursing Home Registration Act 1953 and accordingly accused No.2 Dr. Mukeem Ahmed is held guilty under Section 6 of Delhi Nursing Home Registration Act 1953.
Put up for arguments on sentence on conviction of Page 66 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.
accused No.2 under Section 6 of the Delhi Nursing Home Registration Act 1953. Put up for arguments on Sentence on 19.05.2025. JOGINDER Digitally JOGINDER signed by Announced in the open court PRAKASH PRAKASH NAHAR Date: 2025.05.15 on dated 15.05.2025 NAHAR 15:02:50 +0530 (JOGINDER PRAKASH NAHAR) Additional Sessions Judge (FTC-I) Tis Hazari Court/Delhi/15.05.2025 Page 67 of 67 SC No.27191/2016 FIR No. 237/2006 P. S. Subzi Mandi State vs. Dr. Seema and Ors.