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21.As I have already pointed out, in this case, a team of Doctors by name, Dr.K.G.Juliana Jeyanthi, Senior Assistant Professor, Department of Forensic medicine, District Police Surgeon, Theni Government Medical College Hospital, one Dr.P.Priya, Tutor in Forensic Medicine, Government Theni Medical College, conducted autopsy on the body of the child. There was no external injury on the body of the child. On internal examination, the Doctors recorded the following findings:

?Other Findings: Peritoneal cavity contained 30ml of hemorrhagic fluid. Pleural cavities ? empty, pericardium contained 5 ml of straw hemorrhagic fluid- Heart ? right side fluid blood, left side empty; coronaries patent. Lungs-cut section pale, floatation test-Both lungs floated in the water. Liver, spleen, and kidneys ? cut section pale. Larynx and trachea ? normal taken and preserved in formalin for pathological examination. Hyoid bone ? intact. Stomach-contained 5gms of few cooked rice particles, nil specific odour. Mucosa-pale. Small intestine contained 5 gms of digested food, nil specific smell, mucosa-pale, bladder-empty; brain-hemorrhagic spot of sixe 3 cms x 2 cms was seen over the right frontal lobe cut section pale. Brain was taken and preserved for pathological and chemical examination.? Brain was taken and sent for pathological and chemical examination. The Doctors reserved their opinion awaiting pathological and microbiological report as well as chemical examination reports. Few ampules of paracetamol injection drug kept in the hospital were also seized and sent for examination in the Drug Testing Laboratory. The opinion of the analysts was that it was of standard quality. The forensic report was to the effect that the ampules contained 'acetaminophen', which is the chemical name of the drug paracetamol. Based on these opinions, the Doctors, who have conducted autopsy gave their final opinion on 12.03.2012 where, they have opined as follows:

25.The learned counsel for the petitioner submitted that in normal course, for a child aged 10 months, paracetamol injection won't be given by Doctors. Thus, according to him, the very administration of the paracetamol injection amounts to negligence. But this is inconsistent with the opinion offered by two teams of doctors referred to above as well as the Doctor, who is present before this Court. Dr.K.Sarah would explain that it is normal that depending upon the gravity of the temperature paracetamol drug is administered orally or by means of injection, even to a child at the age of 10 months.

26.Now referring to the bench mark drawn by the Hon'ble Supreme Court in Jacob Mathew's case, in this case, it cannot be said that the administration of paracetamol injection to the child was most likely imminent to result in death. As a matter of fact, the opinion given by the Doctors is negative to the effect that the death was not due to administration of paracetamol injection to the child. As has been held in Jacob Mathew's case, to prosecute a Doctor, opinion from expert Doctors would be obtained to prima facie get satisfied that there was gross negligence on the part of the Doctor.

27.Here in this case, the Doctors have given opinion uniformly, with no dissent, that there was no negligence, much less gross negligence, at all on the part of the Doctor, who administered paracetamol injection. Therefore, prosecuting the Doctor and the paramedical staff for offence under Section 304A of the Indian Penal Code, in the given case, is not at all possible. As has been held by the Hon'ble Supreme Court, if Doctors are to be prosecuted before the Criminal Courts in a casual manner for every death or every injury to the patient, then, the Doctors, as and when called upon to enter into the operation theatre or the treatment room, will enter with shivering hands, which will not be good for the society at large. The Doctors should be given free hand to diagnose the disease and to decide about the course of treatment. At times, the diagnosis or the treatment given may not be a correct one. But such error of judgment cannot be considered as gross negligence in terms of 304A IPC. As has been held by the Hon'ble Supreme Court, it is the culpability of the negligence, which differentiates the negligence as a crime or the negligence as a tort. In the case on hand, I find, absolutely there is no material even to infer that the Doctor and the paramedical staff, who administered paracetamol injection had acted in a manner amounting to gross negligence warranting prosecution. Thus, I find no infirmity in the final report prepared by the Investigating Officer. Therefore, the question of transferring the investigation does not arise.