Gujarat High Court
Dipakbhai Jayatilal Rathod vs State Of Gujarat on 18 June, 2025
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.A/1092/2004 JUDGMENT DATED: 18/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1092 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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Approved for Reporting Yes No
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DIPAKBHAI JAYATILAL RATHOD
Versus
STATE OF GUJARAT
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Appearance:
MR KIRTIDEV R DAVE(3267) for the Appellant(s) No. 1
MS MONALI BHATT, ADDITIONAL PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 18/06/2025
ORAL JUDGMENT
1. Sole accused of Sessions Case no.146 of 2002, decided by the Joint District Judge and Additional Sessions Judge, Fast Track Court, Bharuch on 31.5.2004 is the appellant, found guilty for the offence under Section 312 of the Indian Penal Code, 1860 (IPC) who was granted benefit of probation under Section 360 of the Code of Criminal Procedure, 1973 (Cr.P.C.) and Section 4 of the Probation of Offenders Act, 1958.
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2. The trial against the accused was under Sections 312, 314 and 304A of the IPC. The Trial Court acquitted the accused for the charge under Sections 314 and 304A of the IPC finding him guilty under Section 312 of the IPC. Section 312 of IPC is reproduced hereinbelow to read along with the punitive provision.
"312. Causing miscarriage.-- Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
3. The FIR being CR no.I-12 of 2000 was filed at Jambusar Police Station under Sections 312, 314 and 304A of the IPC by the Police Head Constable - Hafizkhan Ismailkhan on 7.3.2000. The deceased - Rukhsana had come for termination of pregnancy, which led to complications and she breathed last in the hospital at Vadodara on 11.1.2000.
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4. Learned advocate Mr. Kirtidev R. Dave has submitted that the appellant is a qualified gynecologist. On 27.11.1999, one female patient under a false name came for treatment. The history given was of pregnancy with an attempt to remove the foetus by a quack. Mr. Dave submitted that the condition of the deceased was not good and continuation of pregnancy involved the risk of life of the pregnant woman and therefore, under the consent of PW3-Yakub Valikhan, who introduced himself as the husband of the deceased, the appellant as a gynecologist with the necessary consent of deceased, admitted her in his hospital and when the case of the appellant was found complicated, the appellant summoned Dr. Mayank Virendrabhai Parikh - PW2 for his opinion, and it was found that the deceased was in need of more treatment and therefore, she was referred to SSG Hospital at Vadodara. After getting treatment for about a month at SSG Hospital, the patient an unmarried teacher after about 10-12 days of treatment at a private clinic in Vadodara, survived till 11.1.2000. Mr. Dave submitted that when no medical negligence of the Doctor was found and when he was acquitted under Section 304A of the IPC and also under Section 314 of the IPC, then, no condition can Page 3 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025 NEUTRAL CITATION R/CR.A/1092/2004 JUDGMENT DATED: 18/06/2025 undefined sustain under Section 312 of the IPC, which is under the heading of causing miscarriage. Mr. Dave, referring to Exh.18, submitted that the appellant is a M.D. (Gynecologist) and FRSH (London) and has submitted that Shreeji Hospital and Maternity Home had recognized MTP Center under Code no.09P. Advocate Mr. Dave submitted that the appellant is a qualified Doctor and also had his practice from London and stated that it is not a case of any illegal medical termination. Form-I and Form-II as per the regulations were taken on 27.11.1999, under Medical Termination of Pregnancy Act, 1971 (hereinafter referred to as "MTP Act"). Mr. Dave submitted that the learned Sessions Judge has failed to consider the Medical Termination of Pregnancy Act, 1971 and has failed to appreciate the evidence on record. Whether the appellant had conducted the abortion has not been proved by the prosecution. Mr. Dave has further contended that the Trial Court has overlooked the evidence on record of the treatment by a quack and its ill-effect on the deceased. 4.1 Advocate Mr. Dave has submitted that on 27.11.1999, the deceased Rukhsana was admitted for the treatment in the Page 4 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025 NEUTRAL CITATION R/CR.A/1092/2004 JUDGMENT DATED: 18/06/2025 undefined hospital of the appellant and after being shifted to SSG Hospital, she was treated there for a month and on 29.12.1999, she was shifted to a private clinic for further treatment and died at 17.15 hrs. on 11.1.2000. The cause of the death as per the postmortem is septicemia due to the injuries in the uterus and intestine. Mr. Dave submitted that the learned Judge failed to appreciate that the deceased Rukhsana has got admission in the appellant's hospital in the fake name of Abeda Yakub Patel and when the appellant found the case to be complicated, he sought help of another specialist Dr. Mayank Parikh, Surgeon who had opined that the treatment was not possible in Jambusar and therefore, the patient was shifted to SSG Hospital, Vadodara for further treatment. Mr. Dave submitted that nowhere in the trial, it has come on record that the death of Rukhsana was as a result of injuries by the appellant. Mr. Dave submitted that the deceased was treated by local non-medical person. The quack had tried for abortion, but the situation worsened, which compelled the deceased to rush to the hospital. The admitted position was of the injury to the foetus caused by the quack. The appellant had tried to save the life of the deceased and Page 5 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025 NEUTRAL CITATION R/CR.A/1092/2004 JUDGMENT DATED: 18/06/2025 undefined being a complicated case, he had also summoned Dr. Parikh and in facts of the case, the case of miscarriage by the appellant does not survive.
4.2 Advocate Mr. Dave submitted that the learned Judge has failed to appreciate the reply by the appellant in Section 313 of the Cr.P.C. as well as of the documents, and submitted that the documents cannot be read in isolation nor a part of deposition can be taken into consideration, where the need is of reading the evidence in its entirety. 4.3 Advocate Mr. Dave, referring to the evidence of the witnesses, submitted that Section 312 of the IPC does not get proved since any miscarriage by the appellant is not proved by way of any cogent evidence. The case was found to be complicated and the consent of the deceased was taken in an authorized hospital registered under the MTP Act.
4.4 Advocate Mr. Dave submitted that the learned Trial Court Judge failed to appreciate that it was a case of unmarried teacher who was pregnant because of illicit sexual relations and was herself anxious to terminate the pregnancy. Page 6 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025
NEUTRAL CITATION R/CR.A/1092/2004 JUDGMENT DATED: 18/06/2025 undefined 4.5 Advocate Mr. Dave submitted that by a stray sentence of PW2, without any corroboration of documentary evidence, it cannot be said to have been proved that the miscarriage was done on the patient by the appellant. The evidence of PW2 has to be weighed on the evidence which he himself stated that he does not remember everything of the case papers which he had seen. Exhs.17 and 18, itself show that the patient had come with a history of some medicine given to her a day before by a local person and some procedure done by the quack on the very same day. Mr. Dave stated that the patient was kept under observation considering her history, which gets reflected in the treatment advised at Exh.17. Mr. Dave stated that Exh.17 shows that at 8.30 p.m. on 27.11.1999, the deceased was admitted and the continuous observation was noted in the case papers and the fact of Dr. Mayank Parikh visiting appellant's hospital at 04.15 p.m. on 29.11.1999 is noted, where he had advised to refer to SSG Hospital. 4.6 Mr. Dave thus stated that Dr. Parikh had found that the deceased needed further treatment, where at SSG hospital, she was operated for intestine. The postmortem note Page 7 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025 NEUTRAL CITATION R/CR.A/1092/2004 JUDGMENT DATED: 18/06/2025 undefined speaks of septicemia. Mr. Dave stated that the appellant himself had taken the patient to Vadodara. Advocate Mr. Dave has placed reliance on the judgments in (1) Jacob Mathew v. State of Punjab, 2005 LawSuit (SC) 1045 (2) Dr. Suresh Gupta v. Govt. of NCT of Delhi & Anr., (2004) 6 SCC 422 to support his arguments.
5. Per contra, Ms. Monali Bhatt, learned APP, referring to evidence of PW5 and more specifically Paragraphs 5 and 7 of the evidence, stated that the negligence of the Doctor was found. The history before PW1 - Dr. Bhikhubhai Patel and the FIR Exh.33 and the evidence of the brother of the deceased was referred, to state that the Doctor was negligent. Learned APP has also referred to the certificate at Exh.18 admitted by the appellant under Section 313 of the Cr.P.C. and thus, submitted that the conviction under Section 312 of IPC is proper, and the Trial Court considering the status of appellant, has granted benefit of probation.
6. The FIR was given on 7.3.2000 by Armed Head Constable-
Hafizkhan Ismailkhan at Exh.33. As per his complaint, he was entrusted with the investigation of police station diary Page 8 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025 NEUTRAL CITATION R/CR.A/1092/2004 JUDGMENT DATED: 18/06/2025 undefined entry no.15/2000 on 11.1.2000 and according to him, Rukhsana, daughter of Ismail Mohammad Udhradar, resident of Valan, Taluka Karjan, District Vadodara had visited Shreeji Hospital, Jambusar of Dr. Deepak Rathod for medical termination on 27.11.1999. It is alleged that during the course of operation, because of the negligence of the Doctor, her condition deteriorated and on 29.11.1999, she was referred to Gynec Department of SSG Hospital, Vadodara and for further treatment, on 29.12.1999, her brother - Sarfaraz took her to the private hospital of Dr. Bhikhubhai Patel at Vadodara and during the course of treatment, on 11.1.2000, she died at 17.15 hrs.
7. The complainant in Exh.33 notes that the brother of the deceased informed that the death of her sister was because of the negligence of the appellant Doctor. During the course of the investigation, he recorded the statements of Yakub @ Akuali Aanda, Ismailbhai Mohammadbhai Udhradar, Bilkisbanu daughter of Ismailbhai, Hariben wife of Yusuf Mohammad Udhadar, Yusuf Mohammad (Teacher) and has noted that according to the statement of these witnesses, the death was found to be suspicious Page 9 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025 NEUTRAL CITATION R/CR.A/1092/2004 JUDGMENT DATED: 18/06/2025 undefined because of the defect owing to the negligence of Dr. Deepak Rathod or was of other injuries and therefore, the postmortem of the dead body of the deceased - Rukhsana was conducted through panel Dr. Shri H.P. Bukhari and Dr. Rathod of SSG Hospital and the cause of death noted was because of the injury in the uterus and intestine and therefore, concluded that on 27.11.1999, the deceased Rukhsana, daughter of Ismail Mohammad Udhradar was admitted in the hospital at Jambusar of Dr. Deepak Rathod and during the operation of medical termination owing to the negligence of Dr. Rathod, the deceased suffered injury in uterus and intestine and therefore, her condition deteriorated and therefore, Dr. Mayank Parikh (Surgeon) was called for operation telephonically. He advised to refer deceased Rukhsana to SSG Hospital on 29.11.1999, where the condition day to day got worsened and therefore, the deceased's brother Sarfaraz for further treatment took her to Dr. Bhikhbhai Patel's private clinic, where she died during the treatment and therefore, the complaint was filed against the appellant under Sections 312, 314 and 304A of the IPC.
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8. The learned Trial Court Judge took into consideration the evidence of witnesses PW1 to PW7, documentary evidence produced by the prosecution and the documents produced by the accused Exhs.17 and 18 in the cross-examination of the prosecution witness. The learned Trial Court Judge, on appreciation of the evidence, found that it was unnatural death of the deceased Rukhsana because of the injury in the uterus and the intestine. The learned Trial Court Judge also believed that the prosecution has proved that the appellant - accused has caused miscarriage of Rukhsanaben daughter of Ismail Mohammad Udhradar, while decided in negative observing that the prosecution has failed to prove the negligence and rashness of Dr. Dipak Jayantilal Rathod in conducting the operation for termination of the pregnancy and denied to believe that because of his rashness, negligence and carelessness, the injury was sustained by the deceased in the uterus and the intestine and because of that reason, her condition worsened and she died on 11.1.2000. The learned Judge, thus, decided the case under Section 312 in positive, while the case under Sections 314 and 304A in negative. Page 11 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025
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9. Sections 304A and 314 of the IPC, as defined in IPC, are 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.
314. Death caused by act done with intent to cause miscarriage.-- Whoever, with intent to cause the miscarriage of a woman with child, does any act which causes the death of such woman, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine;
if act done without woman's consent.-- and if the act is done without the consent of the woman, shall be punished either with imprisonment for life, or with the punishment above mentioned."
10. The learned Trial Court Judge, on appreciation of the evidence on record, was not willing to accept the case of the prosecution under Section 314 of the IPC to find that the death was caused by the act done with an intent to cause miscarriage. The Trial Court has not found any callousness, negligence and rashness in the act of the appellant, which could be considered as a cause for death Page 12 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025 NEUTRAL CITATION R/CR.A/1092/2004 JUDGMENT DATED: 18/06/2025 undefined of the deceased. The learned Judge has not found any rashness or negligence of the appellant to consider the death of the deceased not amounting to culpable homicide.
11. Section 312 of the IPC deals with causing of miscarriage with consent of the woman. The Medical Termination of Pregnancy Act, 1971 does not empower the husband, far less his relation, to prevent the concerned woman from causing abortion if her case is covered under Section 3 of the MTP Act. Under Section 312 of the IPC, causing miscarriage is a penal offence. The MTP Act provides for termination of the pregnancy by registered medical practitioner, where its continuance would involve risk to the life of the pregnant woman or grave injury to physical and mental health or when there is a substantial risk that if the child was born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. Section 312 penalises causing miscarriage of a woman consenting to it. When such miscarriage is secured in good faith to save the life of a pregnant woman, Section 312 of IPC absolves the author of miscarriage of any crime. If the Page 13 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025 NEUTRAL CITATION R/CR.A/1092/2004 JUDGMENT DATED: 18/06/2025 undefined physician gets a woman aborted to save her life, he is to be acquitted.
12. As per the deposition of Dr. Mayank Virendrabhai Parikh -
PW2, he was called on 29.11.1999 at about 6.00 p.m. telephonically by the appellant-accused. As per the message, he had gone to Jambusar at Shreeji Hospital of the appellant, where the appellant had asked him to examine a female patient. Dr. Mayank Virendrabhai Parikh-PW2 stated in his deposition that miscarriage was conducted of the female patient at the hospital of Dr. Rathod, which he states so as was informed by the appellant. At that time, he found that the internal examination was necessary after conducting the operation and as there was no facility of anesthesia and therefore, he had advised to take her to Vadodara Sayaji Hospital. Dr. Parikh - PW2 stated that apart from giving the advise, he had done no other things. During the course of deposition, the Court questioned the witness as to why the witness found it necessary to open the abdomen of the patient. To that, the witness replied that the stomach part was hard Page 14 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025 NEUTRAL CITATION R/CR.A/1092/2004 JUDGMENT DATED: 18/06/2025 undefined and whether any injury had been caused to the patient in the abdomen, was required to be examined.
13. In the cross-examination, PW2 - Dr. Parikh had affirmed that the appellant was running Shreeji Hospital at Jambusar for the past 10 years and prior to that, he was a Doctor at the Government hospital and also affirmed that for delivery and termination of foetus, there is a necessity of gynecologist, the appellant was M.D. gynecologist and had affirmed that he had received the degree of FRSH from London and also affirmed that Dr. Rathod was managing the recognized hospital and MTP Center at Jambusar.
14. The witness, in his cross-examination, has affirmed that Dr. Rathod had phoned him and informed that the condition of the patient was serious and had asked for his opinion and therefore, he had gone to his hospital. This PW2 had not inquired from the patient, while he observed the patient at Dr. Rathod's hospital. He stated that there was injury in the stomach of the patient and any injury in the abdomen of the patient or the complication could be known only after opening the stomach, otherwise, could not be known and therefore, he had referred the patient to Page 15 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025 NEUTRAL CITATION R/CR.A/1092/2004 JUDGMENT DATED: 18/06/2025 undefined SSG Hospital at Vadodara. The witness affirmed that he could not say as to what was the problem in the abdomen of the patient. He has also affirmed that the appellant - Doctor was experienced in medical termination of pregnancy.
15. The Trial Court Judge, relying on the evidence of PW2, has convicted the appellant under Section 312 of the IPC.
16. It is required to be noted that the deceased was admitted on 27.11.1999. Exh.17 notes the history that some medicine was given by some local person and some procedure was also done by some quack.
17. In the postmortem note no.48/2000 by the Department of Pathology dated 4.2.2000, it is observed to the observation of the uterus as under:-
"Histopathological Report Name-Rukshanaben D/o Ismailbhai Udaradar Age/Sex-30 yrs/F C/o. Dr. H.B. Kothari, Forensic Medicine Department S.S.G.H. The deceased had 4/0 MTP on dt.27/11/99 and expired on 11/1/2000 17.15 hr at private hospital.Page 16 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025
NEUTRAL CITATION R/CR.A/1092/2004 JUDGMENT DATED: 18/06/2025 undefined We received a unopened uterus with perforation on posterior wall of fundus and partially fallopian tubes and ovaries for favour of Histopathological examination.
Cross-examinations:-
Uterus:-
We received a uterus with partially cut fallopian tubes and ovaries. The uterus measures 8x6x2 cm. The uterine wall thickness is 1.0 cm. There is a 1.0 cm size perforation on the posterior wall of fundus. There is also a 0.5 cm nodule on the serosa of anterior wall right fallopian tube measuring 0.5 cm and only attached to cornu. Left fallopian tube is 2.0 cm in size. Right ovary measuring 1x1x0.4 cm and partially cut open. Left ovary measuring 2x1x0.4 cm and partially cut open. In the cervix, there is a small mucinous cyst present."
18. Exh.18 is about Form-C, Form-I and Form-II, where the patient's name is Abedaben Yakubbhai of Savaj. The consent to termination of pregnancy at Shreeji Hospital and Maternity Home, Jambusar was on 27.11.1999. It was opined under Form-I that the pregnancy does not exceed 12 weeks/but does not exceed 20 weeks and notes that the appellant was of the opinion in good faith that the continuance of pregnancy would involve a risk to the life of the pregnant women or would result in mental and physical health.
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19. Exh.17 is a consent letter, where PW3 had signed as husband of the deceased and he was informed by the Doctor about the seriousness and the danger of MTP (miscarriage operation).
20. PW2 had not physically examined the patient. He was of the opinion that the abdomen was required to be opened to examine any injury in the interior part. According to him, the appellant had informed that he had conducted the miscarriage and though he had read the case papers, he does not remember the details. Exh.17 - the consent document is attached with the case history. The case papers as produced at Exhs.17 and 18 have been put in evidence by way of cross-examination of PW3 Yakubbhai. It appears that the prosecution has failed to produce these documents as well as any other documents to prove the fact that the appellant had actually conducted the medical termination of the pregnancy. The endorsement in the case paper is that she was kept under observation. The evidence of Investigating Officer shows that he had collected documents at list Exh.16 from the appellant, but had not produced along with the charge-sheet. Page 18 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025
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21. The evidence of PW1 - Dr. Bhikhubhai Patel who is the Surgeon at M.S. General Vadodara Hospital was noted below Exh.12 and according to him, on 29.12.1999, at about 12.30 p.m., Rukhsanaben aged about 30 years was brought from Sayaji Hospital for treatment at his hospital in a serious condition. According to PW1, the medical history noted that after the medical termination, there was pain in stomach and from there, she was admitted in Sayaji Hospital, where she had undergone abdomen operation and as her condition worsened, she was brought at his hospital. So the evidence of this Doctor shows that on 29.12.1999, the patient was brought from Sayaji Hospital. PW1 is having his own private practice. On examination, he had seen septicemia, pneumonia in lungs, burst abdomen, multiple fistula and bed sores.
22. According to him, he started the treatment and conducted tracheostomy at the neck for artificial breathing. He had also conducted the operation to remove the perforated intestine area. He states that the intestine was removed from two parts. She was given blood and supporting Page 19 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025 NEUTRAL CITATION R/CR.A/1092/2004 JUDGMENT DATED: 18/06/2025 undefined treatment. Inspite of the treatment, her condition gradually worsened and she died.
23. PW1 - Doctor stated that there was enormous infection in the internal part, which he observed during the operation and therefore, he could not find out whether there was any injury in the uterus. The Doctor also clarifies that when the patient was brought before him, he had not found any negligence in the treatment.
24. This evidence of the Doctor PW 1 before whom the brother of the deceased had taken Rukhsana for further treatment had not found any negligence in the earlier treatment. Accordingly, as per the cross-examination, Rukhsanaben was in his hospital in from 29.12.1999 to 11.1.2000. He had no occasion to ask about treatment, except to ask about the history. The Doctor affirmed that prior to bringing the patient Rukhsanaben before him, she had passed through many operations. He had not inquired from Rukhsanaben about the treatment or any medicine consumed prior to the termination of the foetus. Page 20 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025
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25. According to PW1 - Doctor, many a times, people would go to another person, apart from the Doctors, for termination of the foetus. The Doctor affirmed that if a person is not a Doctor and if anyone terminates the foetus with the rod, then, there are possibility of perforation in the intestine. He affirms that in his police statement, he has stated that the deceased brother - Sarfaraz had informed him that on 27.11.1999, his sister was admitted at Jambusar private hospital for termination of foetus and thereafter, her health deteriorated and for further treatment, she was taken to Sayaji Hospital, where she had stomach operation thrice, but there was no improvement in her health. PW1 was not given any case papers of Sayaji Hospital in connection with the patient Rukhsanaben.
26. The evidence of the Doctor with a private practice shows that in Sayaji Hospital, Rukhsanaben was operated thrice, but the Doctor had not seen any negligence in the earlier treatment. The Doctor also had knowledge that on 27.11.1999, she was admitted at the appellant's hospital for medical termination. The injury, as has been noted, is in relation to intestine and stomach and lung pneumonia. Page 21 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025
NEUTRAL CITATION R/CR.A/1092/2004 JUDGMENT DATED: 18/06/2025 undefined While no injury has been stated of uterus. The Doctor deposed that he could not know any injury in the uterus since there was a lot of infection in the internal part.
27. PW1 - Dr. Patel had not found any negligence in the treatment by earlier doctors. The evidence of PW2 - Dr. Parikh cannot be relied upon to assess the work of appellant since PW2-Dr. Parikh does not even remember the details of case papers of treatment of the deceased by the appellant, further PW2 had merely asked to refer to SSG hospital. The appellant - accused phoned PW2 to examine the patient to understand the complication, would be a sufficient gesture to evaluate that the appellant, as Doctor, has taken sufficient care, and showed promptness to treat the patient, when PW2 has referred about the appellant being experienced with qualified Doctor.
28. PW3 - Yakub Valikhan was the person who had taken Rukhsanaben to the hospital of the appellant. He had shown his status as a husband of Rukhsanaben who named her as Abedaben before the appellant. The consent Exh.17 is given by PW3 as a husband of the deceased and had given a consent for medical termination for pregnancy Page 22 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025 NEUTRAL CITATION R/CR.A/1092/2004 JUDGMENT DATED: 18/06/2025 undefined to the Doctor. Thus, this fact shows that the appellant was not aware of the actual status of the deceased patient and PW3. The evidence shows that PW3 was having illicit relations with Rukhsanaben and to hide the fact of pregnancy, it appears from the evidence of PW3 that some treatment was taken at Village Chavaj from some unqualified person. PW3, in his evidence, had made an attempt to hide the said fact while stating that in the hospital, Rukhsanaben was admitted under the name of Abedaben and he had attached his name along with her name. He himself had taken Rukhsanaben to the hospital. PW3 was declared hostile, but in the cross-examination by the learned APP, he has denied of giving a statement before the police of love relation of last 4 years with Rukhsanaben and out of the relation, she got pregnant and that he had denied to marry her. In the cross-examination, the witness admits that the deceased was from his own village and was a reputed person serving as a teacher. He was having a pan shop. He admits that on 27.11.1999, Rukhsanaben had informed him of the pregnancy and of taking medicine for miscarriage at Chavaj and had also informed of getting some intrauterine device inserted and she was having Page 23 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025 NEUTRAL CITATION R/CR.A/1092/2004 JUDGMENT DATED: 18/06/2025 undefined heavy pain and therefore, had asked him to take her to the Doctor since, there was bleeding. Therefore, he had brought her to Jambusar, but there, he found that it would affect the reputation and thus, had given her name as Abeda and got his name written as her husband. He had informed the Doctor that Rukhsanaben was staying at Chavaj. He had also affirmed that at Village Chavaj, Rukhsanaben had tried to get the foetus terminated by conservative method at Village Chavaj.
29. The witness affirmed that the appellant Doctor's hospital was selected by him since he was famous in treatment of miscarriage and delivery and was sure that the case would not be a failure. The witness also stated that when he had taken Rukhsanaben to the hospital, at that time she was unconscious and in the consent form, he had put his signature and had also given the consent for operation and anesthesia. He stated that the Doctor has assured him that generally, such kind of operation are 100% successful, but there are 5% chances of failure. He stated that there was some impurity in the uterus, which was treated by the appellant Doctor. In the cross-examination of the witness, Page 24 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025 NEUTRAL CITATION R/CR.A/1092/2004 JUDGMENT DATED: 18/06/2025 undefined the case papers and the consent form were referred and admitted in the evidence at Exhs.17 and 18. Witness affirmed that appellant Doctor had also informed Abedaben that there was some earlier injury in the uterus and intestine because of treatment, which has caused injury and therefore, there was necessity to take opinion from a Surgeon. He affirmed that on the advise of Dr. Mayank Parikh, the appellant Doctor Rathod himself had brought Rukhsanaben in his car at Sayaji Hospital, Vadodara. Immediately, she was taken for treatment and the appellant Doctor had made necessary conversation for the treatment. He stated that till that period, no one in Abedaben's house was knowing this fact, nor any person had come there. On the third day, he had phoned at Abedaben's house to inform about the same.
30. The evidence shows that the appellant Doctor had informed the deceased about her injury in the uterus and intestine because of the earlier treatment. This fact gets corroborated from the case papers at Exh.17, where the history has been noted about some procedure done by quack on that very same day. The appellant Doctor had Page 25 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025 NEUTRAL CITATION R/CR.A/1092/2004 JUDGMENT DATED: 18/06/2025 undefined taken the best of care for the treatment of the patient. The Trial Court found no negligence of the Doctor and acquitted the appellant under Section 304A of the IPC and even under Section 314 of the IPC. Section 304A of the IPC applies to the cases, where there is no intention to cause death and no knowledge that the act in all probability will cause death. It only applies to such acts as a rash or negligent and are directly the cause of death of a person. Rash or negligent act mentioned in this section means the act, which is the immediate cause of the death and not any act or omission which can, at the most, be said to be a remote cause of death. In order that a person may be guilty under Section 304A, the rash or negligent act must be the direct or proximate cause of the death. The learned Trial Court Judge has not found any rash or negligent act of the appellant. Here the appellant is a qualified person, gynecologist in the hospital, as well as the MTP center was approved by the Government. He had facilities for medical termination. Exh.18 proves the said fact, which shows that Shreeji Hospital and Maternity Home, Jambusar is recognized MTP center with Code no.09P. Page 26 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025
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31. Section 314 provides for the case, where death has occurred in causing miscarriage. The act of the accused must have been done to cause miscarriage of woman with child. The learned Trial Court Judge had not found any offence under Section 314 of the IPC against the appellant, however, convicted the appellant under Section 312 of the IPC. Section 312 of the IPC requires two essential ingredients, (i) voluntarily causing a woman with child to miscarry, (ii) such miscarriage should not have been caused in good faith for the purpose of saving the life of the woman. Miscarriage is a premature expulsion of the child or foetus from the mother's womb at any period of pregnancy before the term of gestation is completed. But if the miscarriage is caused in good faith for saving the life of a pregnant woman, no offence is committed. Section 52 of the IPC defines 'good faith'. To prove the offence, the evidence that would be required is that (i) the woman was with the child; or that she was quick with child, (ii) the accused did some act likely to cause some miscarriage, (iii) the accused did so voluntarily, (iv) such a woman did miscarry in consequences, (v) such miscarriage was not caused in good faith in order to save the woman's life. Page 27 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025
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32. The Hon'ble Supreme Court in the case of Surendra Chauhan v. State of M.P., (2000) 4 SCC 110 has observed that after coming into force of the Medical Pregnancy Act, 1971, the provisions of IPC relating to miscarriage became sub-servant to that act because of the non-obstante clause in Section 3. Under Section 4 of the Act, termination of pregnancy shall be made in accordance to the Act, at the hospital established or maintained by the Government or a place approved by the Government for that purpose. Rule 4 of the Medical Termination of the Pregnancy Rules, 1975 framed under the Act provides as to how a place under Section 4 could be approved and how inspection etc. of such place is to be carried out. A place shall not be approved under Section 4 (i) unless the Government is satisfied that the termination of the pregnancy may be done therein in the safe and hygienic condition, and (ii) unless the following facilities are provided therein, namely:-
(a) an operation table and instruments for performing abdominal or gynecological surgery, (b) anaesthetic equipment resuscitation equipment and sterilisation Page 28 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025 NEUTRAL CITATION R/CR.A/1092/2004 JUDGMENT DATED: 18/06/2025 undefined equipment; (c) drugs and parenteral fluids for emergency use.
33. Here in this case, the appellant was not aware of the illicit sexual relations of the deceased along with PW3 - Yakub Valikhan. PW3 had in fact introduced himself before the appellant as a husband of Rukhsanaben and had hidden the true identity of the deceased by getting her name recorded as Abedaben. There is no allegation against the Doctor that he was illegally terminating the foetus. Exh.18 shows that consent was sought for the termination of pregnancy. The learned Trial Court Judge referred to the provision of Section 312 of the IPC, noted that the appellant Doctor had not taken any such defence, that the miscarriage was done in good faith and without any coercion, nor has made any clarification under Section 313 of the Cr.P.C. in his further statement and the learned Trial Court had found that act under good faith is not proved by any documentary evidence. The learned Trial Court Judge had found that miscarriage was proved and that the miscarriage was caused by the appellant and such miscarriage was voluntarily done and none had forced him Page 29 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025 NEUTRAL CITATION R/CR.A/1092/2004 JUDGMENT DATED: 18/06/2025 undefined to do such an act, nor the Doctor has proved that to save the life of the woman, such miscarriage was caused in good faith.
34. Such observation runs contrary to the documents on record. In the cross-examination of PW3, the appellant as an accused had produced the case papers of treatment at Exh.17 and form under the MTP Act at Exh.18. The case papers show the necessity for saving the life of the pregnant woman and for that purpose, consent was taken as proved under Exh.18. In the further statement under Section 313 of the Cr.P.C., the appellant as an accused before the Trial Court was questioned with regard to Exh.17, which he denied to be true, while he affirmed the document at Exh.18 to be true. Thus, the observation that the accused had failed to prove is contrary to the documents on record. The said documents were clarified in Section 313 statement of the Cr.P.C. The Trial Court Judge had observed that Exh.18 does not bear the signature of the Doctor, however was required to be noted that the document at Exh.18 has been affirmed by the Doctor in his further statement under Section 313 of Cr.P.C. as true. Page 30 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025
NEUTRAL CITATION R/CR.A/1092/2004 JUDGMENT DATED: 18/06/2025 undefined The learned Judge was required to take that into consideration.
35. Section 52 of the IPC defines 'good faith' as under:-
"52. "Good faith".--Nothing is said to be done or believed in "good faith" which is done or believed without due care and attention."
36. The definition states that an act is only done in good faith if it is done with good care and attention. Absence of good faith means simply callousness or negligence. It is required to be mentioned that the learned Trial Court Judge has not found rash or negligence of the Doctor under Section 304A of the IPC. The law does not clarify the amount of care and attention required, but if the appellant as a Doctor with the requisite qualification and necessary experience performs his duty requiring the skill or care, then, it could be considered that the degree of care which was necessary considering the degree of danger has been exercised by the appellant Doctor. PW3 himself stated that he had gone to the appellant's hospital since he was reputed Doctor of gynecology and the record suggests that he was having necessary approval of the Government under the MTP Act. Page 31 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025
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37. In the case of Jacob Mathew (supra) referred by Advocate Mr. Dave, the case of Dr. Suresh Gupta (supra) was placed for consideration being a bench of Three Judges. The correctness of the view taken in Dr Gupta's case was doubted.
38. In Dr. Suresh Gupta's case, the bench of Two Judges of the Hon'ble Supreme Court was referring a case of a plastic surgeon on the charge under section 304A. The patient was operated by the Doctor for removing his nasal deformity. The Anesthetist, who was assisting the Surgeon in the operation, was also made co-accused who died pending the trial. The Surgeon had given a cut at wrong place of the body of the patient at the time of operation, leading to blood seeping into the respiratory passage and blocking it, resulting in his death. It was held that 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 was observed that it is not merely lack of necessary care, attention and skill, but the prosecution has to come out with a case of high degree of negligence on the Page 32 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025 NEUTRAL CITATION R/CR.A/1092/2004 JUDGMENT DATED: 18/06/2025 undefined part of the Doctor. Mere lack of proper care, precaution and attention or inadvertence might create civil liability, but not a criminal one.
39. On consideration, in the case of Jacob Mathew (supra), it has been observed as under:-
"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 Page 33 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025 NEUTRAL CITATION R/CR.A/1092/2004 JUDGMENT DATED: 18/06/2025 undefined 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.
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4. The test for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R. 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 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 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 Page 35 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025 NEUTRAL CITATION R/CR.A/1092/2004 JUDGMENT DATED: 18/06/2025 undefined limited application in trial on a charge of criminal negligence."
40. In the case of Arun Kumar Manglik vs Chirayu Health And Medicare Private Ltd., (2019) 7 SCC 401, it has been held as under:-
31. In Bolam v Friern Hospital Management Committee, the defendant doctor treating a patient suffering from mental illness was held not guilty of medical negligence by the Queens Bench for failure to administer muscle-relaxant drugs and using physical restraint in the course of electro-
convulsive therapy. Justice McNair, in his directions to the jury, laid down the following standard of care:
"...I myself would prefer to put it this way, that he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. I do not think there is much difference in sense. It is just a different way of expressing the same thought. Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view."
41. The Medical Termination of Pregnancy Act, 1971 came into force for termination of certain pregnancies by the registered medical practitioners and for matters connected therewith or incidental thereto. Section 3 of the MTP Act Page 36 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025 NEUTRAL CITATION R/CR.A/1092/2004 JUDGMENT DATED: 18/06/2025 undefined provides for the termination of the pregnancy by a registered medical practitioner. Section 3 of the said Act reads as under:-
"3. When pregnancies may be terminated by registered medical practitioners.--
(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.
(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,--
(a) where the length of the pregnancy does not exceed twelve weeks, if such medical practitioner is, or
(b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are, of opinion, formed in good faith, that--
(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or
(ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.Page 37 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025
NEUTRAL CITATION R/CR.A/1092/2004 JUDGMENT DATED: 18/06/2025 undefined Explanation I.-- Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.
Explanation II.-- Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.
(3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken of the pregnant woman's actual or reasonably foreseeable environment. (4)(a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a1 [mentally ill person], shall be terminated except with the consent in writing of her guardian.
(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman."
42. Section 4 is with regard to the place, where the pregnancy can be terminated, which is reproduced hereunder:-
4. Place where pregnancy may be terminated.- No termination of pregnancy shall be made in accordance with this Act at any place other than,-Page 38 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025
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(a) a hospital established or maintained by Government, or
(b) a place for the time being approved for the purpose of this Act by Government."
43. Section 5 of the MTP Act puts a clutch to the provision of Sections 3 and 4 explaining under what circumstances, they would not apply. Section 5 is reproduced hereunder:-
"5. Sections 3 and 4 when not to apply.-
1. The provisions of Sec.4 and so much of the provisions of sub-section (2 of Sec. 3 as relate to the length of the pregnancy and the opinion of not less than two registered medical practitioner, shall not apply to the termination of a pregnancy by the registered medical practitioner in case where he is of opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman.
2. Notwithstanding anything contained in the Indian Penal Code (45 of 1860), the termination of a pregnancy by a person who is not a registered medical practitioner shall be an offence punishable under that Code, and that Code shall, to this extent, stand modified."
44. Sub-section (2) of Section 5 clarifies that termination of the pregnancy by a person who is not a registered medical practitioner shall be an offence punishable under the IPC. Page 39 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025
NEUTRAL CITATION R/CR.A/1092/2004 JUDGMENT DATED: 18/06/2025 undefined But if the registered medical practitioner in case he forms opinion in good faith, to terminate pregnancy to save the life of pregnant woman then it is not an offence under Section 3(1) of the MTP Act which clarifies that despite anything contained in IPC, a registered medical practitioner shall not be guilty of any offence under IPC or under any other law for the time being in force if the pregnancy is terminated in accordance to the provision of MTP Act.
45. Section 5 thus permits a registered medical practitioner to terminate the pregnancy, where he comes to an opinion in good faith that the continuation of the pregnancy would involve a risk of the life of the pregnant woman or grave injury physical or mental health and if the registered medical practitioner under the condition as noted in Section 5 of the MTP Act terminates the pregnancy, then, he would not be considered guilty of any offence under the IPC or any other law for the time being in force.
46. Here the appellant Doctor had recorded the history prior to the treatment and had also called PW2 - Dr. Mayank Virendrabhai Parikh for a second opinion as the condition Page 40 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025 NEUTRAL CITATION R/CR.A/1092/2004 JUDGMENT DATED: 18/06/2025 undefined worsened. PW2 had advised to take the patient for further treatment to Vadodara Sayaji Hospital. The appellant himself as a Doctor took the patient to SSG Hospital. PW2 himself stated that appellant's educational qualification is M.D. and is a Gynecologist and having a degree of FRSH from London. He also stated that the appellant is an experienced Doctor in connection with the termination of pregnancy.
47. The present appellant was competent to terminate pregnancy of Rukhsanaben and he had a clinic which was approved with the basic facilities and is an experienced Doctor. There was no ill intention of the appellant, the termination of pregnancy has been done in good faith, as was of the opinion to terminate pregnancy to save the life of the patient.
48. PW4 - Sarfaraz Ismail is the brother of the deceased and PW6 - Bilkisbanu Ismailbhai is a sister of the deceased. The brother stated that the deceased was the eldest sister and he has three sisters. Deceased Rukhsanaben was serving as a teacher in the Village. He knows PW3 - Yakubbhai and stated that his sister was having an illicit Page 41 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025 NEUTRAL CITATION R/CR.A/1092/2004 JUDGMENT DATED: 18/06/2025 undefined relations with PW3 - Yakubbhai. Prior to the incident, his sister had informed him that she was visiting their maternal uncle's house at Jangar. Four or five days thereafter, Lalabhai staying in their street received a phone call from PW3, who informed that Rukhsana had met with an accident and was admitted at Vadodara Sayaji Hospital. PW3 had informed that she was admitted under a false name. Thereafter, he and the family members went to Vadodara and visited the sister at the Gynec ward of Sayaji Hospital. The Doctor had informed that there was an inflammation in the intestine of Rukhsana and therefore, she was operated. He had no conversation with his sister. There she had undergone treatment for 40-45 days and thereafter, she was taken to Bhikhubhai's hospital, where she was admitted for 12-13 days. There too, he had no incident to talk with his sister. The witness stated that it was because of the negligence of the appellant - accused that his sister died. He had no knowledge at what place, her sister had taken the treatment. He stated that it had not occurred that when her sister was operated at Dr. Rathod's hospital during the course of operation, her intestine got cut. The witness was declared hostile. He Page 42 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025 NEUTRAL CITATION R/CR.A/1092/2004 JUDGMENT DATED: 18/06/2025 undefined affirmed that he had not taken his sister to Jambusar Hospital.
49. PW6 - Bilkisbanu has almost corroborated the say of PW4.
According to the witness, when they had gone to Sayaji hospital on the next day, Rukhsana had gained consciousness, but she had not informed them anything, nor had she talked with them. She stated that her sister's name was recorded as Abeda and she was having constant bleeding, but had not inquired as to why there was bleeding and had no information as to why she was admitted in SSG Hospital. In the cross-examination, she has stated that it had come to her knowledge that their sister - Rukhsanaben was pregnant and she had taken some treatment of termination of foetus from some private person at Village Chavaj and there, she bleeded and also affirmed that to save her dignity, false name was given at the hospital. It is also the evidence of the witness that the deceased Rukhsana had not informed her that because of the negligence of Dr. Rathod, she had suffered difficulty.
50. The evidence of both the witnesses - brother and sister of the deceased reflect that the deceased was having relation Page 43 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025 NEUTRAL CITATION R/CR.A/1092/2004 JUDGMENT DATED: 18/06/2025 undefined with PW3. The brother states that it was the negligence of the appellant, which was the cause of death of the sister, while PW6 states that the deceased had never told her that it was because of the negligence of the appellant Dr. Rathod that she suffered and the evidence has also come on record that the deceased had tried to get the foetus aborted at Village Chavaj through a private person.
51. Dr. Haresh Budhabhai Kothari - PW5 is the Medical Officer who had conducted the postmortem. According to him, there was tracheostomy at the neck from where some liquid was coming out and in the middle part of the abdomen, because of the operation there was liquid coming out with strong stench. He has also referred to the surgery and stitches in the internal wall of the stomach. He has given evidence that there were innumerable perforation in the small intestine, which were stitched and there was jejunostomy of the small intestine.
52. According to him and the panel Doctor P.J. Rathod, the death of the deceased was because of the injury in the uterus and the complications, which led to shock, and ultimate to death. Histopathology report was also referred Page 44 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025 NEUTRAL CITATION R/CR.A/1092/2004 JUDGMENT DATED: 18/06/2025 undefined to support the opinion. The witness stated that the injury which was there in the uterus could be caused when there would be negligence during the abortion and the innumerable perforation in the intestine would be because of the infection in the uterus injury and therefore, stated that during the course of abortion, if injury is sustained, that would lead to perforation in the intestine. In the cross- examination, the Doctor stated that he was not informed about the number of operations and the reason for operation which the Doctor had performed, and had also stated that often people would go for miscarriage from unqualified person and also admitted that at times, during the abortion, many people would use rod and if such kind of rods are used, then, there are all possibility of injury in the uterus and intestine. The Doctor was not informed whether actually there was termination of pregnancy and what was used for that purpose. He affirmed that during the postmortem, they saw more than one operations in the stomach area and also affirmed that there may be other reasons for perforation in the intestine apart from what he stated. This witness deposed from the postmortem angle. The earlier history would not be known to him. It appears Page 45 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025 NEUTRAL CITATION R/CR.A/1092/2004 JUDGMENT DATED: 18/06/2025 undefined that the witness has merely supported the prosecution case. He had no occasion to treat the patient. The opinion of the witness appears to be discussed from the prosecution papers. There is no basis show by the witness to form such opinion apart from postmortem report.
53. In the case of Arun Kumar Manglik vs Chirayu Health And Medicare Private Ltd., (2019) 7 SCC 401, it has been held as under:-
"41. In Bolitho v City and Hackney Health Authority,13 the House of Lords held that the course adopted by the medical practitioner must stand a test to reason:
"...in my view, the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant's treatment or diagnosis accorded with sound medical practice. In the Bolam case itself, McNair J. stated that the defendant had to have acted in accordance with the practice accepted as proper by a "responsible body of medical men." Later, at p. 588, he referred to "a standard of practice recognised as proper by a competent reasonable body of opinion." Again, in the passage which I have cited from Maynard's case, Lord Scarman refers to a "respectable"
body of professional opinion. The use of these adjectives--responsible, reasonable and respectable--all show that the court has Page 46 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025 NEUTRAL CITATION R/CR.A/1092/2004 JUDGMENT DATED: 18/06/2025 undefined to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter."
54. PW7 - Anilkumar Narendrakumar who is the Investigating Officer was handed over the investigation of the complaint dated 7.3.2000, where the PSO himself was the complainant. The complaint was registered at Jambusar Police Station under Sections 312, 314, 304A of the IPC. The complaint Exh.33 was put in evidence. The Investigating Officer stated that the complainant PSO had died.
55. He further stated that during the course of further investigation, he had called for the documents for the treatment from Vadodara Hospital. The witness received the complaint from the PSO. The investigation was sent to the complainant - Hafizkhan and thus, stated that he himself has not conducted the investigation. He affirms Page 47 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025 NEUTRAL CITATION R/CR.A/1092/2004 JUDGMENT DATED: 18/06/2025 undefined that when the accused was before him, he had made inquiry and the documents which have been produced vide list Exh.16 were produced by the accused before him and he had taken all the documents from the accused. He affirmed that he has not produced those documents along with the charge-sheet. The Investigating Officer affirmed that the accused was managing Shreeji Hospital for many years and was running a maternity hospital. He was M.D. Gynec and also had a degree from London and the abortion center is recognized under the law, which was run at Jambusar and was having the Code no.09P. The Government had legally certified the hospital. He had not made any inquiry with regard to the offence at Taluka Chavaj and had also not inquired from the accused as to what kind of treatment and what medicines were administered. He has also affirmed that there is no panchnama of the hospital or operation theatre, while denied the suggestion that there was no evidence against the accused, inspite of that, he had filed a charge-sheet.
56. The case of the appellant is of exercise of 'good faith' in causing miscarriage. The appellant, being qualified and Page 48 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025 NEUTRAL CITATION R/CR.A/1092/2004 JUDGMENT DATED: 18/06/2025 undefined experienced Doctor and registered medical practitioner, gives immunity from prosecution under IPC, as provided under the MTP Act, 1971. The appellant - Doctor took the decision on 27.12.1999. Section 3 deals with the opinion formed in good faith. The continuance of the pregnancy involves risk of the life of the pregnant woman or of grave injury physical or mental health, then pregnancy can be terminated by the registered medical practitioner. The appellant is registered medical practitioner, had hospital approved by the Government with the MTP Code allotted to the appellant's hospital. The facts and circumstances of the case suggest that the opinion was formed in good faith to terminate the pregnancy. From the facts, it was concluded that there was no callousness or negligence of the appellant by the learned Trial Court Judge. Hence, in view of that fact, the opinion formed by the appellant was in good faith to terminate the pregnancy. Whether the appellant Doctor had actually terminated the pregnancy had not been proved by cogent and tangible documentary evidence. The Investigating Officer, though had collected the papers from the accused, had failed to continue his investigation on that line. The treatment taken from some Page 49 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025 NEUTRAL CITATION R/CR.A/1092/2004 JUDGMENT DATED: 18/06/2025 undefined unauthorised unqualified person is proved by the documentary and oral evidence of the witnesses. The Investigation Officer has not investigated this evidence. The act of appellant is not the direct cause of death. The death is dated 11.1.2000, while the patient had approached the appellant on 27.11.1999. Even if termination of pregnancy by the appellant is to be believed, then too, the circumstances and the condition of the deceased clarifies that the opinion was in good faith. The learned Trial Court failed to appreciate this aspect under Section 312 of the IPC, inspite of concluding of lack of negligence, rashness and carelessness, while acquitting under Sections 304A and 314 of the IPC.
57. The appeal is allowed. In the result, the conviction order under Section 312 of the IPC of the appellant dated 31.5.2004 passed by the Joint District Judge and Additional Sessions Judge, Fast Track Court, Bharuch in Sessions Case no.146 of 2002 is quashed and set aside. The appellant - accused is acquitted. R & P be sent back.
(GITA GOPI,J) Maulik Page 50 of 50 Uploaded by MAULIK R. PANDYA(HC00205) on Wed Jun 18 2025 Downloaded on : Fri Jun 20 01:05:20 IST 2025