Jammu & Kashmir High Court - Srinagar Bench
Dr. Gh. Nabi Bhat vs State Of Bihar Reported As Air 2 on 10 March, 2011
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR Cr. Appeal No. 08 of 2008 Dr. Gh. Nabi Bhat Petitioners State & another Respondents !Mr. M. S. Latief, Advocate ^Mr. N. H. Shah, Advocate Honble Mr. Justice Mansoor Ahmad Mir, Judge Date:10/03/2011 : J U D G M E N T :
1) This appeal challenges the orders of conviction and sentence dated 17th and 19th of July, 2008, whereby appellant came to be convicted for the commission of offences punishable under Section 304-A of Ranbir Penal Code, hereinafter for short as RPC, and sentenced to three years rigorous imprisonment with a fine of Rs. 5,000/-, hereinafter for short as impugned orders, on the grounds taken therein.
SUMMARY OF THE CASE
2) Police Station Chadoora is alleged to be in receipt of a written report filed by Gul Mir PW No. 1, alleging therein, that his wife Mst. Rehti, deceased had some uterus ailment and was under treatment. It was advised by the appellant-accused that surgery is required to be conducted and for which he demanded and accepted Rs. 4,000/- from PW No.1. On receiving the amount, took her to the Government Sub Divisional Hospital, Chadoora, hereinafter for short as SDH Chadoora. The electricity went off when the surgery was underway and accused- appellant performed the surgery under candlelight.
3) After sometime Mst. Rehti complained merciless pain and on noticing the condition of the patient, the appellant-doctor boarded her in an ambulance for carrying her to Sheri-Kashmir Institute of Medical Sciences, Soura, Srinagar, but she died enroute.
4) It is further alleged that appellant-doctor performed his duties in a very lackadaisical and negligent manner resulting in the death of Mst. Rehti.
5) A case was registered under Section 304 and 165 RPC, Police was set in motion, statements of witnesses recorded, seizure was affected and investigation was concluded. The Investigating Officer arrived at a conclusion that the accused-appellant has committed offences punishable under Section 165 and 304 RPC. Accordingly, Challan against the accused-appellant was filed before Special Judge Anticorruption Kashmir, Srinagar for the commission of offences punishable under Section 165 RPC and a separate challan against him was filed before Judicial Magistrate 1st Class, Chadoora.
6) The case, after its committal by the Judicial Magistrate 1st Class, Chadoora, was heard and accused-appellant came to be chargesheeted under Section 304A RPC by the court of Sessions Judge, Budgam. The accused-appellant pleaded not guilty to the charge, therefore, prosecution was asked to lead evidence in support of its case.
7) Prosecution examined PW No.1, Gul Mir, PW No. 2 Mst. Jana, PW No. 3 Abdul Rashid Shah, PW No. 4 Ghulam Mohammad Nengroo, PW No. 5 Mohammad Ashraf Shah, and PW No. 8 Dr. Abdul Rashid Malik. However, it failed to examine PW Nos 6, 7, 9, 10 and 11.
8) All the witnesses examined by the prosecution, except PW No. 8 Dr. Abdul Rashid Malik have turned hostile and have not supported the prosecution version.
9) PW No. 1 Gul Mir, in his deposition has stated that deceased was his wife who was ailing for the last five years. He took her for treatment to accused-appellant whom he identifies in the court. On being advised, few medical tests were conducted and the reports thereof were shown to the accused-appellant. After going through said reports, the accused-appellant told him to take her to Srinagar for treatment. Thereafter in the month of Ramadhan at 7.30 pm she fell ill and was taken to Chadoora Hospital in a vehicle (truck). Accused- appellant was on duty at that time, but he refused to treat her. Accordingly he got a taxi cab and boarded her in the said vehicle, was accompanied by some other people also.
10) In cross examination he has stated that he was beaten by the Army near its post, and were not allowed to proceed ahead and they came back to SDH Chadoora. PWs 2 and 5 were also present there at that point of time. So many people requested the accused- appellant to conduct surgery and on request the accused-appellant conducted surgery. After surgery was over, the patient was brought out and taken in a room and from there to the Ward. After half an hour electricity went off. Accused-appellant neither demanded nor he paid the money. He has denied the averments of the FIR.
11) PW No. 4 Ghulam Mohammad Nengroo has stated that he was posted as Nursing Orderly in SDH Chadoora on the date of occurrence. At about 9.30 p.m. deceased was brought to the hospital by her relatives who were four in number. The doctor refused to examine her and instructed them to take the deceased to Srinagar Hospital. No ambulance was available in the Hospital at that time. Accordingly she was boarded in a vehicle by her attendants. After half an hour, they came back and said that the Army did not allow them to proceed ahead to Srinagar and compelled the doctor to conduct surgery and accordingly doctor performed surgery. The patient was brought out of the Operation Theatre and was taken to the Post Operative Ward, thereafter she complained pain and was taken to SKIMS.
12) Other PWs have also deposed on the same lines and none has supported the prosecution version.
13) PW Dr. Abdul Rashid Malik, has stated that he was posted as Block Medical Officer, SDH Chadoora on 25th of January, 1997. Accused-appellant is a surgeon having Post Graduation in Surgery but was performing duties as Assistant Surgeon, was on night duty on 25th of January, 1997. There was no permission from the higher authorities to conduct any major surgery where anesthetist was required. The accused has conducted the surgery of the lady-deceased without anesthetist and other required arrangements. That the act of accused was negligent in nature. On cross-examination he has stated that he did not know the previous history of the deceased and did not know from which ailment she was suffering. Accused was competent to conduct surgery. Ambulance was available in the hospital during night. One Abdul Rashid Raina was the ambulance driver. Excessive bleeding of an ovarian cyst can even cause death. If such a patient comes to the hospital the moral duty of the doctor is to save her. It was January, 1997 and during those days militancy was also going on, searches etc. were also being conducted. On court question he has deposed that it was not the scope of the postmortem to know as to whether local anesthesia was administered by the accused while conducting surgery.
14) The statement of the accused was recorded under Section 342 Code of Criminal Procedure which is reproduced as under:-
Q. Did you hear and understand the contents of the chargesheet ?
A. Yes Sir. Q. It has come in the Chargesheet that on 27.1.1997 you were posted at Sub Divisional Hospital Chadoora? A. Yes Sir. Q. What do you say about the fact that on the said day,
during night hours, Mst. Rehti wife of Gul Mir R/o Kanister Chadoora was brought before you in the said Hospital for being ill?
A. It is true that I was on duty that night and Mst. Rehti wife of Gul Mir was brought to the Hospital.
Q. Chargesheet discloses that you firstly refused to treat Mst. Rehti and suggested her referral to Srinagar Hospital. But because of the non- availability of the vehicle, said Mst. Rehti was again brought to your hospital for treatment. What do you say about this all?
A. Sir it is true. When Mst. Rehti was again brought to the Hospital, I formally admitted her as an Indoor patient.
Q. It has come in the Chargesheet that you operated upon Mst. Rehti when there was no anesthetist posted and the Hospital was not equipped with the required facilities and in this way you acted negligently. What is your say about this?
A. I did not formally operate her. Since she was brought in the state of emergency and her ovary-cyst had busted I drained out that only and for this the services of an anesthetist were not required. It could be done locally.
Q. Do you have to say something more? A. I am surgeon specialist having obtained M.S.
Degree in the field. I am capable of performing surgery. The allegations leveled against me in the chargesheet are baseless and same is substantiated by the acquittal order dated 29.3.2004 passed by Special Judge Anticorruption, Srinagar, copy of which is hereby submitted.
Q. Do you want to produce evidence in defence?
A. Yes Sir.
15) The prosecution has failed to bring home guilt to the accused. Even the star witnesses have not supported the prosecution case.
16) It is worthwhile to mention herein that the prosecution has failed to explain why they have failed to examine PWs 9 to 11 who are Investigating Officers, material and very important witnesses.
Withholding the statements of such important witnesses thereof is fatal for the prosecution and adverse inference has to be drawn against it. Apex Court has laid down the same principle in cases titled Bahadur Naik versus State of Bihar reported as AIR 2000, SC 1582, and Raj Kishore Jha versus State of Bihar and others, AIR 2003, SC 4665 Para
11. It is apt to reproduce said Para 11 herein:-
Mere non-examination of Investigating Officer does not in every case cause prejudice to the accused or affects the creditability of the prosecution version. In Ram Dev and another v. State of U.P (1995 Supp (1) SCC 547), it was noted that non- examination of the Investigating Officer does not in any way create any dent in the prosecution case much less affect the credibility of otherwise trustworthy testimony of the eye-witnesses. It was, however, indicated that it is always desirable for the prosecution to examine the Investigating Officer. In the present case after examination-in-chief and partial cross-examination, the Investigating Officer had died. Therefore, this cannot be a case which can be stated to have caused any prejudice to the accused on account of Investigating Officers non-examination. The prosecution cannot be attributed with any lapse or ulterior motives in such circumstances. In Behari Prasad and others, v. State of Bihar (1996 (2) SCC 317) it was held that case of prejudice likely to the suffered mostly depends upon facts of each case and no universal straight-jacket formula should be laid down that non- examination of Investigating Officer per se vitiates the criminal trial. The said view has been found echoed in Ambika Prasad and another v. State (Delhi Administration) (200 (2) SCC 646), Bahadur Naik v. State of Bihar (2000 (9) SCC 153) and Ram Gulam Chaudhury and others v. State of Bihar (JT 2001 (8) SC
110).
14)
17) Apex Court, in cases titled Jacob Mathew versus State of Punjab and another reported in AIR SCW 3685 and AIR 2009 SC 2049 titled Martin F. DSouza v. Mohd. Ishfaq laid down the tests when the Doctor can be convicted for the commission of offences punishable under Section 304A RPC while conducting operation. It is apt to reproduce Para, 49 out of AIR 2005 and Paras, 46 and 124 out of judgment reported in AIR 2009.
49. 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 medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was 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 Bolams case (1957) 1 WLR 582, 586 holds good in its applicability in India. (5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be must 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 304A of 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 304A of the 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. (Paras, 46 and 124 out of AIR 2009)
46. There may be a few cases where an exceptionally brilliant doctor performs an operation or prescribes a treatment which has never been tried before to save the life of a patient when no known method of treatment is available. If the patient dies or suffers some serious harm, should the doctor be held liable? In our opinion he should not. Science advances by experimentation, but experiments sometimes end in failure e.g. the operation on the Iranian twin sisters who were joint at the head since birth, or the first heart transplant by Dr. Barnard in South Africa. However, in such cases it is advisable for the doctor to explain the situation to the patient and take his written consent.
124. It must be remembered that sometimes despite their best efforts the treatment of a doctor fails. For instance, sometimes despite the best effort of a surgeon, the patient dies. That does not mean that the doctor or the surgeon must be held to be guilty of medical negligence, unless there is some strong evidence to suggest that he is.
18) Keeping in view the ratio laid down by the Apex Court in the judgment hereinabove, the prosecution has to prove that accused- Doctor has acted with sheer negligence and was negligent in performing duties. Applying the test to the instant case, whatever accused/ doctor has replied while recording statement under Section 342 Cr. P.C. is corroborated by the evidence of the prosecution. How the trial court brushed aside the defence of the Doctor which is duly corroborated by the prosecution, as discussed hereinabove, is not forthcoming. Virtually appellant came to be convicted on no evidence.
19) The accused is surgeon i.e. Post Graduate in Surgery/ MS, thus was competent to conduct surgery. But despite that he as a measure of precaution advised the attendants to shift the patient to Srinagar. Further, there is evidence on the file that on the advice of the appellant she was taken in the vehicle but Army personnel did not allow them to proceed ahead constraining them to bring her back to the SDH Chadoora and at their request accused tried to save her by draining out the busted ovarian cyst locally.
20) Dr. Abdul Rashid Malik has stated that ambulance was available in the hospital and its driver Abdul Rashid was also available at the relevant point of time. Prosecution has examined driver namely Abdul Rashid Shah, PW 3, who has deposed that he was on night duty on 25th of January, 1997 and had taken a patient from SDH Chadoora to Srinagar. When he came back he was told that another patient was brought to the Hospital, accused-appellant had refused to admit her and advised them to take her to Srinagar Hospital. The attendants boarded her in a taxi cab but they were not allowed to proceed to Srinagar by the Army Personnel, was brought back to the SDH Chadoora and accused-appellant was requested to conduct operation. Thereafter he was asked to take her to SKIMS where he dropped the deceased. Ambulance was not available in the hospital at the relevant point of time.
21) The statement of Dr. Abdul Rashid Malik is not corroborated by the driver Abdul Rashid Shah. How the trial court relied on his statement is not forthcoming from the record. Withholding of material witnesses in the given circumstances is too fatal for the prosecution.
22) Having glance of the above it can be safely said and held that the prosecution has failed to bring home guilt to the accused. The trial court has fallen in error by passing the impugned orders of conviction and sentence. Accordingly, appeal is allowed. Impugned orders of conviction and sentence are set-aside. The case of the prosecution is dismissed and accused-appellant acquitted of all the charges leveled against him.
Send down the trial court record.
(Mansoor Ahmad Mir) Judge Srinagar:
10.03.2011 Amjad lone PS