Dr. Soumya Ghosh @ vs Unknown on 6 May, 2013

[Cites 11, Cited by 0]

Calcutta High Court (Appellete Side)

Dr. Soumya Ghosh @ vs Unknown on 6 May, 2013

Bench: Toufique Uddin

CRA No. 296 of 2008 In the matter of : Dr. Soumya Ghosh @ Soumya Ghosh ... Appellant Mr. Milon Mukherjee Mr. Saibal Mondal Mr. Anand Keshori Mr. Subhasish Dasgupta ... For the appellant Mr. Shiladitya Sanyal, Ld. A.P.P. Mr. Sardar Shahi Imam ... For the State This appeal arose out of judgment and order dated 30.4.2008 passed by the learned Additional Sessions Judge, 9th Court, Burdwan in Sessions trial case No. 4 of 2008 convicting the appellant for commission of offence under Section 304A IPC and sentencing him for a period of one year with the direction to pay fine.

In the background of this appeal the fact in a nutshell is that on 24.10.2002 one Adhir Kr. Banerjee lodged a written complaint before the O.C., Burdwan P.S. to the effect that his cousin Abhoy Banerjee had 2 fallen down from Scooter on 17th October, 2002 as a result of which he had sustained fracture in his left hand elbow and was admitted to Burdwan Sadar Hospital. But when pain on his hand did not reduce even after setting his bones, the said Adhir Banerjee consulted an orthopaedic Dr. Soumya Ghosh after taking release from Burdwan Hospital. Dr. Soumya Ghosh had advised immediate operation apprehending big damage without wasting time. On 24.10.2002, Abhoy was taken in the O.T. at about 4.30 P.M. at Jibandeep Nursing Home, Burdwan and his relatives were waiting for completion of operation. When they enquired about the operation they were told that the operation was going on and they would be informed accordingly. But at about 8.30 P.M. they became suspicious and noticed that there was a good number of police personnel and in presence of those police personnel they were informed that the patient has expired at about 10.05 P.M. Dr. Soumya Ghosh was fully responsible for the death of Abhoy because he was of firm belief that due to negligence of Dr. Ghosh, Abhoy had expired. For suppressing the news of death of Abhoy 3 the complainant has accused the said nursing home authorities.

On receipt of the complaint, the Police started investigation and after investigation Police submitted charge-sheet.

The learned court below on hearing of both sides framed charges under Section 304 IPC against the accused persons. The contents of the charges were read over and explained to them when they pleaded not guilty and claimed to be tried.

To contest the case the prosecution examined as many as 14 witnesses while one witness was examined on the side of the defence.

The accused person was examined under Section 313 of the Code of Criminal Procedure. The defence case as appeared from the trend of cross- examination and replies given by the accused persons is denial of offence with the plea of innocence.

The learned trial court convicted the accused person by the impugned judgment.

Now, the question is whether the impugned judgment suffers for any infirmities and calls for any interference or not.

The appellant is convicted for commission of offence under Section 304A IPC which reads as under:

S. 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.

The learned counsel for the appellant mainly argued on the following points.

i) the case by no stretch of imagination can be taken within the ambit of negligence on the part of the concerned appellant who happens to be a doctor and ii) there was no mala fide intention or deliberate mal- treatment causing death to the patient victim.

To appreciate the case from a better angle let some pieces of evidence be considered.

The complaint is Ext. 1 lodged by Adhir Kr. Banerjee wherein he ventilated his allegations by stating that the victim Abhoy died due to negligence of the appellant Dr. Soumya Ghosh. They were not informed of the name of the doctor nor of his degree who made Abhoy unconscious. They are also holding Nursing 5 Home authorities solely responsible for concealing the truth. It was alleged therein that the said nursing home has no infrastructure as per West Bengal Clinical Establishment Act.

Ext. 2 is the inquest report wherefrom it appears that "it was the firm belief of the people present there that Abhoy expired due to negligence of Dr. Soumya Ghosh and due to application of xylocaine anesthesia".

PW 1 is cousin brother of the deceased. From his evidence and other evidence it appears that initially Abhoy sustained fracture injury on its left elbow on left hand on 17.10.2002 due to a scooter accident and then he was taken to Burdwan Sadar Hospital and then he was examined by Dr. Soumya Ghosh who suggested blood clothing operation and it was done accordingly at Jibandeep Nursing Home, Burdwan. He was admitted there at around 4 P.M. and after half-an-hour, he was taken to the O.T. but for a petty long time they did not get any information from the nursing home authority and subsequently when some police personnel came there at about 10P.M., they learnt that the deceased died.

PWs 2, 3 and 4 were declared hostile.

PW 5 is the sister-in-law of the deceased. When she had been to the nursing home, she found some Police there.

PW 6 is a doctor who held the post mortem of the victim's dead body. On examination he found the following injuries:

"The fresh (i) I.V. mark in Rt. Anterior cubital vain,

(ii) One injection mark 2" above the level of tip of left olecranon,

(iii) One injection mark 1" above posterior axillary fold around the axillary fold in left side and the old injury being fracture (closed) at the lower portion of left humerus with haemorrhage collection of blood in and around the fracture side with dislocation of left elbow joint.

The death of the said person, in my opinion, was in view of the findings noted above are due to anaphylactoid Reaction (ANAPHYLAXIS) following injection of the drugs- ante mortem in nature. This is the said post mortem report written and signed by me. These are my signatures on it (Post mortem report is marked Ext.3). Being asked by the I.O. of this case, I had made some clarification regarding the said post mortem report. This 7 is the said clarification report dated 6.11.2002 signed by me. (Clarification report is marked Ext. 4). General anesthesia was not given to the said Abhoy Banerjee prior to his death."

The relevant portion of clarification at Ext. 4 reads as under:

"These are medical mal-occurrences which may cause extra sufferings to the patient and the doctor is not actually responsible in these cases as the doctor is not negligent in his act".

PW 7 is a constable who carried the dead body. PW 8 is a Sub-Inspector of Police. On receipt of complaint, forwarded the same with endorsement after getting filled up formal FIR (Ext. 6).

PW 9 could not say how Abhoy expired.

PW 10 is a local people who is a signatory to the inquest report. He knew that Abhoy sustained injuries a few days back and subsequently died at nursing home after being admitted there under Dr. Soumya Ghosh on 24.10.2002.

PW 11 is another seizure witness.

PW 12 is another formal police witness. 8 PW 13 is a nurse of the said nursing home. She stated that the appellant, Dr. Soumya Ghosh was attached to the said nursing home and on the relevant time she used to attend the O.T. as a nurse. She could not say if Dr. Ghosh had himself given anesthesia to the said patient before his operation. She was declared hostile. But from the I.O.'s evidence it transpires that she made such statement that before the operation xylocaine was given for anesthesia to the patient and thereafter the victim collapsed.

PW 14 is another Police Officer. He is the I.O. He held inquest of the dead body as well as investigation by recording statements including Dr. Soumya Ghosh and others. He has stated what actually was stated by Bani Das and other hostile witnesses and struck to his gun by asserting that the statement given under Section 161 of the Code of Criminal Procedure by those persons was correctly recorded by him.

The appellant was examined under Section 313 of the Code of Criminal Procedure. Pinpointed questions were asked to him but his only alibi is that he is innocent. The appellant examined DW 1 who is a Professor-cum-Head of the Department of Anestheology 9 of Burdwan Medical College & Hospital. His evidence is reproduced hereunder:

"If the operations are possible through local anesthesia same are safer than general anesthesia. In upper limb surgery as in close reduction and internal fixation with percuteneary of steel ware can be termed to be a minor surgery. Such surgery is normally a bloodless surgery. In such surgery it is safer to administer local anesthesia.

At time we find some patient with damage in kidney or heart, lungs or even brain where we do not find any outward manifestation or even when patient himself does not know about damage of such organs such patients are called Asymptomatic patient. In case of such patient local anesthesia is safer. In case of such minor surgery X-ray or Ultra sound is not mandatory except in case of extreme of age i.e. for the patient below one year or about/above 80 years of age. In case of a patient for minor surgery below the age of 50 years, normally X-ray or Ultra sound of such patient are not done/advised. But if the patient has any problem of blood pressure same is checked.

No consultation of an anesthetist is required by an Orthopaedician in doing minor surgery under local anesthesia if such patient does not complain of any major disease like blood pressure, chest pain, liver problems, or central nervous system problem."

The terms "rashness" and "medical negligence"

require to be looked into from legal perspective because it is not such rashness and negligence as seen in other types of cases.

In Syed Akbar vs. State of Karnataka 1978 Cr LJ 1374 (SC) the Hon'ble Supreme Court observed that where negligence is an essential ingredient of the offence, the negligence to be established by the 10 prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. As pointed out by Lord Atkin in Andrews vs. Director of Public Prosecutors (1973) 2 ALL ER 552, simple lack of care such as will constitute civil liability is not enough, for liability under the criminal law "a very high degree a negligence is required to be proved. Probably of all the epithets that can be applied 'reckless' most nearly covers the case.

Though the term 'negligence' has not been defined in the Code, it may be stated that negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a reasonable and prudent man would not do - Madhab Prasad Kaushik vs. State of U.P. (2009) 2 SCC (Cri) 834.

According to the dictionary meaning 'reckless' means 'careless', regardless or heedless of the possible harmful consequences of one's acts. It presupposes that if thought was given to the matter by the doer before the act was done, it would have been apparent to him that there was a real risk of its having the relevant harmful 11 consequences; but, granted this, recklessness covers a whole range of states of mind from failing to give any thought at all to whether or not there is any risk of those harmful consequences, to recognizing the existence of the risk and nevertheless deciding to ignore it. In R. vs. Briggs (1977) 1 WLR 605 it was observed that a man is reckless in the sense required when he carries out a deliberate act knowing that there is some risk of damage resulting from that act but nevertheless continues in the performance of that act.

In Dr. Suresh Gupta vs. Govt. of NCT of Delhi & Anr. 2004 AIR SCW 4442 the Hon'ble Apex Court propounded that the act attributed to doctor though can be described as negligent act but not so reckless or grossly negligent as to make him criminally liable and accordingly, criminal proceedings were quashed.

The matter in controversy has well been taken care of by the renowned judgment of Hon'ble Apex Court in Jacob Mathew vs. State of Punjab & Anr. 2005 AIR SCW 3685 wherein it was held that negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations 12 which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property. The definition involves three constituents of negligence; (1) a legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of the duty; (2) breach of the said duty and (3) consequential damage. Cause of action for negligence arises only when damage occurs;

for damage is a necessary ingredient of this tort. 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.

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 13 considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or on 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 14 time (that is, the time of incident) at which it is suggested it should have been used.

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.

A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So, also an error of judgment on the part of a professional is not negligence per se. Higher the 15 acuteness in emergency and higher the complication, more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. 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. Which course is more appropriate to follow would depend on the facts and circumstances of a given case. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person in charge of the patient if the patient is not in position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure.

The jurisprudence concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal 16 law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis of prosecution.

The word 'gross' has not been used in Section 304A 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 IPC has to be read as qualified by the word 'grossly'.

Res ipsa loquitur is only 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.

No sensible professional would intentionally commit an act or omission which would result in loss or 17 injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Else it would be counter-productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur.

Res ipsa loquitur is a rule of evidence which in reality belongs to the law of torts. Inference as to negligence may be drawn from proved circumstances by applying the rule if the cause of accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. In criminal proceedings, the burden of proving negligence as an essential ingredient of the offence lies on the prosecution. Such ingredient cannot be said to have proved or made out by resorting to the said rule.

To prosecute a medical professional for negligence under criminal law it must be shown that the 18 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.

A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer an end-dose of medicine to his patient. If the hands be trembling with the dangling fear of facing a criminal prosecution in the event of failure for whatever reason whether attributable to himself or not, neither a surgeon can successfully wield his life-saving scalper to perform an essential surgery, nor can a physician successfully administer the lifesaving dose of medicine. Discretion being better 19 part of valour, a medical professional would feel better advised to leave a terminal patient to his own fate in the case of emergency where the chance of success may be 10% (or so), rather than taking the risk of making a last ditch effort towards saving the subject and facing a criminal prosecution if his effort fails. Such timidity forced upon a doctor would be a disservice to the society.

The purpose of holding a professional liable for his act or omission, if negligent, is to make the life safer and to eliminate the possibility of recurrence of negligence in future. Human body and medical science - both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires in- depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability.

The cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes, such prosecutions are filed by private complainants and sometimes by police on an FIR being lodged and cognizance taken. The investigating 20 officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to rash or negligent act within the domain of criminal law under Section 304A IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. at the end he may be exonerated by acquittal or discharge but the loss which he has suffered in his reputation cannot be compensated by any standards.

It cannot be said that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that is emphasized is the need for care and caution in the interest of society; for the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainants prefer recourse to criminal process as a tool for pressurizing the medical professional for 21 extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.

Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, the Supreme Court laid down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in Government Service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam's test laid down in (1957) 1 WLR 582 to the facts collected in 22 the investigation. A doctor accused of rashness or negligence may not be arrested in a routine manner (simply because a charge has been leveled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.

In Martin F. D'Souza vs. Mohd. Ishfaq 2009 AIR SCW 1807 the Hon'ble Apex Court propounded that a medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. It is not enough to show that there is a body of competent professional opinion which considers that the decision of the accused professional was a wrong decision, provided there also exists a body of professional opinion, equally competent, 23 which supports the decision as reasonable in the circumstances.

Whenever a complaint is received against a doctor or hospital by the Consumer For a (whether District, State or National) or by the Criminal Court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or Criminal Court should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the concerned doctor/hospital. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. The Courts and Consumer Fora are not experts in medical science and must not substitute their own views over that of specialists. The police officials should not arrest or harass doctors unless the facts clearly come within the parameters laid down in 2005 AIR SCW 3685, otherwise the policemen will themselves have to face legal action.

In Moloy Kr. Ganguly vs. Sukumar Mukherjee & Ors. 2010 AIR SCW 769 the Hon'ble Apex Court held that the charge of professional negligence on a medical person is a serious one as it affects his professional status and reputation and as such the burden of proof would be more onerous. A doctor cannot be held negligent only because something has gone wrong. He also cannot be held liable for mischance or misadventure or for an error of judgment in making a choice when two options are available. The mistake in diagnosis is not necessarily a negligent diagnosis. Even under the law of tort medical practitioner can only be held liable in respect of an erroneous diagnosis if his error is so palpably wrong as to prove by itself that it was negligently arrived at or it was the product of absence of reasonable skill and care on his part regard being held to the ordinary level of skill in the profession. For fastening criminal liability very high degree of such negligence is required to be proved. Death is the ultimate result of all serious ailments and the doctors are there to save the victims from such ailments. Experience and expertise of a doctor are utilized for the 25 recovery. But it is not expected that in case of all ailments the doctor can give guarantee of cure.

The standard of proof as also culpability requirements under Section 304A IPC stands on an altogether different footing. On comparison of the provisions of Penal Code with the thresholds under the Tort Law or the Consumer Protection Act, a foundational principle that the attributes of care and negligence are not similar under Civil and Criminal branches of Medical Negligence law is borne out. An act which may constitute negligence or even rashness under torts may not amount to same under Section 304A IPC.

The patients by and large are ignorant about the disease or side or adverse effect of a medicine. Ordinarily the patients are to be informed about the admitted risk, if any. If some medicine has some adverse effect or some reaction is anticipated, he should be informed thereabout. It was not done in the instant case. The law on medical negligence also has to keep up with the advances in the medical science as to treatment as also diagnostics. Doctors increasingly must engage with patients during treatments especially when the line 26 of treatment is a contested one and hazards are involved. Standard of care in such cases will involve the duty to disclose to patients about the risks of serious side effects or about alternative treatments. In the times to come, litigation may be based on the theory of lack of informed consent. A significant number of jurisdictions, however, determine the existence and scope of the doctor's duty to inform based on the information a reasonable patient would find material in deciding whether or not to undergo the therapy. In this respect, the only reasonable guarantee of a patient's right of bodily integrity and self-determination is for Courts to apply a stringent standard of disclosure in conjunction with a presumption of proximate cause. At the same time, a reasonable measure of autonomy for the doctor is also pertinent to be safeguarded from unnecessary interference.

For establishing medical negligence or deficiency in service, the Courts would determine the following:

i) No guarantee is given by any doctor or surgeon that the patient would be cured.

ii) The doctor, however, must undertake a fair, reasonable and competent degree of skill, which may not be the highest skill.

iii) Adoption of one of the modes of treatment, if there are many, and treating the patient with due care and caution would not constitute any negligence.

iv) Failure to act in accordance with the standard, reasonable, competent medical means at the time would not constitute a negligence. However, a medical practitioner must exercise the reasonable degree of care and skill and knowledge which he possesses. Failure to use due skill in diagnosis with the result that wrong treatment is given would be negligence.

v) In a complicated case, the Court would be slow in contributing negligence on the part of the doctor, if he is performing his duties to the best of his ability.

In the case of Jacob Mathew (supra) the Hon'ble Apex Court has framed some guidelines. To collect an opinion from an expert doctor is a pre- requisite for launching any case of medical negligence against a professional doctor. The prosecution has 28 examined doctor, PW 6. His evidence is not of such type as may tend to prove the culpability of the doctor.

The question is whether 'professional negligence' can be brought within the clutches of criminality. Criminality is an act or mental state of condition which tends towards commission of a crime i.e. in other words a mens rea should exist. In a criminal case, the motive/mens rea can hardly be available always. Sometime, motive has to be inferred from the conduct of the erring party.

In the case at hand the accused is a medical practitioner. He received his fees of Rs. 5000/- for undertaking operation in respect of the deceased. So, ex facie motive is absent. Therefore, the remaining part of action taken by the doctor is to be judged to find out if there is any prima facie dereliction of duty or breakage of professional ethics or maltreatment or deliberate and gross negligence in the form viz. for example (keeping inside the abdomen a small knife after operation is over and stitching is done) or something like this. It is not expected from a medical practitioner that he will charge fees from his patient in one hand and at the same time takes such desperate and deliberate steps as to cause 29 gross mistake to take away the life of a patient. It is against the rule of human behavior especially of a professional medical practitioner.

Of course, other aspect has to be mentioned. It is not the evidence that the patient was not on speaking condition. Before giving xylocaine whether the accused asked the patient of any existing other problems/disease which may cause side effects is not clear. This omission may at best attract a 'civil' negligence in the form of tortious liability, the accountability for which lies not in the instant criminal case.

Next comes question of proportionality of an action. Proportionality of the action can give rise to both civil liability and criminal liability. But if it has to be attributed to any 'criminality' definitely the degree of negligence is to be measured. Correct it is that the doctor did not call any expert anesthetist. Rather he himself had done anesthesia and thereafter the patient expired. This indicates two kinds of interpretations, viz.

i) either deliberately to kill the patient the doctor did it or

ii) with a view to curing the patient by making a successful operation, he did so. The former can safely 30 be ruled out in view of the discussion made above and the later may seem to be more probable and acceptable.

This being the position, I am of the opinion that the findings of the learned trial court cannot be supported.

Accordingly, the order of conviction and sentence passed by the impugned judgment dated 30.4.2008 is hereby set aside.

In the result, the appeal stands allowed. The appellant is acquitted and released from bail bond immediately.

Let a copy of the judgment and the LCR be sent down to the learned court below immediately for necessary action.

Urgent Photostat certified copies, if applied for, be supplied according to rules.

(Toufique Uddin, J.)

Unlock Advanced Research with PRISMAI

Calcutta High Court (Appellete Side)