Bolangir that only normal delivery facilities were available in the
Women’s Care Nursing Home. The deceased was diagnosed as
G3P2 in labour with ‘antepartum haemorrhage’. According to
medical science, patient of ‘antepartum haemorrhage’ should be
hospitalised in a well equipped centre with facilities for blood
transfusion, emergency caesarean section and neonatal care
unit. Being a gynaecologist, the petitioner must be aware about
nature of treatment to be provided to such patient and the
consequence likely to follow if the safeguards are not properly
taken. Even if no such facilities to deal with such patient was
available in the Nursing Home, the petitioner did not advise the
complainant to take the deceased to D.H.H., Bolangir rather 37
assured the complainant that the deceased was in normal
condition. When there was heavy vaginal watery discharge after
the petitioner inserted one tablet inside the vagina of the
deceased and she felt severe pain, the petitioner gave one saline
and injection and told the complainant that the deceased would
be alright within fifteen minutes. Thus prima facie materials are
available on record to show that the petitioner knowingly kept
the deceased in the Nursing Home with assurance to the
complainant for normal delivery even though he was aware that
it was a critical case and there are no such facilities in the
Nursing Home to deal with such case. The attempt of forceps
delivery appears to have caused rupture of her uterus, as a
result of which there was profuse bleeding and the condition of
the deceased became serious. The forceps delivery was not
appropriate in a birthing centre like the Nursing Home of the
petitioner where a caesarean section could not have been done,
if needed. It was not an unforeseen injurious occurrence which
could not be reasonably anticipated but creation of a substantial
and unjustifiable risk of harm to the deceased by a conscious
disregard for that risk. Therefore, it is prima facie apparent that
the petitioner did such a high degree of negligence while dealing
with the case of the deceased which in the facts and
circumstances no medical professional in his ordinary senses and
prudence would have done. The hazard taken by the petitioner
was of such a nature that the rupture of the uterus and severe
bleeding and risk to the lives of the mother and the unborn baby
was most likely imminent. The petitioner prima facie appears to
have not exercised the skill with reasonable competence and did
not adopt the practice acceptable to the medical profession of
that day. As a doctor, it was the duty of the petitioner to explain
the deceased or at least the complainant, chances of success and
the risk of failure of the suggested treatment and inform them
about the foreseeable risks and possible negative effects of the
treatment keeping in mind the patient's specific condition. The
independent and competent medical opinion given by the team
of doctors, the statements of the witnesses and the other
surrounding circumstances raise accusing fingers at the
petitioner which is not at all healthy sign for medical profession.
In order to attract the ingredients of offence under
section 304 Part II of the Indian Penal Code, there must be
commission of culpable homicide not amounting to murder i.e.
the death of the person must have been caused, such death
must have been caused by the act of the accused by causing
bodily injury and there must be knowledge on the part of the 39
accused, but without any intention that the bodily injury is such
that it is likely to cause death. To constitute the offence of
‘culpable homicide’ as defined in section 299 of the Indian Penal
Code, the death must be caused by doing an act: (a) with the
intention of causing death, or (b) with the intention of causing
such bodily injury as is likely to cause death, or (c) with the
knowledge that the doer is likely by such act to cause death.
Section 304-A of the Indian Penal Code on the other
hand carves out a specific offence where death is caused by
doing a rash or negligent act and that act does not amount to
culpable homicide under section 299 Indian Penal Code or
murder under section 300 Indian Penal Code. Where the
intention to kill a person or knowledge that doing of an act was
likely to cause a person's death are there, section 304-A of the
Indian Penal Code has to make room for the graver and more
serious charge of culpable homicide. Negligence and rashness
are essential elements under section 304-A of the Indian Penal
Code. In other words, the applicability of section 304-A of the
Indian Penal Code is limited to rash or negligent acts which
cause death but fall short of culpable homicide amounting to
murder or culpable homicide not amounting to murder.40
In case of Alister Anthony Pareira -Vrs.- State of
Maharashtra reported in (2012) 2 Supreme Court Cases
648, it is held as follows:-
“47. Each case obviously has to be decided on its
own facts. In a case where negligence or
rashness is the cause of death and nothing
more, Section 304-A may be attracted but
where the rash or negligent act is preceded with
the knowledge that such act is likely to cause
death, Section 304 Part II IPC may be attracted
and if such a rash and negligent act is preceded
by real intention on the part of the wrongdoer to
cause death, offence may be punishable under
Section 302 IPC.”
14. Thus, looking to the matter from all angles, I have no
doubt in my mind that knowledge cannot be attributed to
petitioner that his act might cause such bodily injuries which
may, in ordinary course of nature, be sufficient to cause death
Thus, in my opinion, there are no prima facie materials for
commission of an offence under section 304 Part II of the Indian
Penal Code. However, there are sufficient materials to proceed
against the petitioner under section 304-A of the Indian Penal
Code as due to his rash or negligent acts, death of the deceased
was caused which falls short of culpable homicide not amounting
to murder.
IN THE HIGH COURT OF ORISSA, CUTTACK
CRIMINAL REVISION NO. 758 of 2013
Dr. Subas Chandra Dash
V
State of Orissa
P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
Date of Judgment: 27.02.2017
S. K. Sahoo, J. “We have not lost faith, but we have transferred
it from God to medical profession.”
- George Bernard Shaw
A common man treats the doctor as ‘Dhanvantari’.
He has tremendous amount of confidence on the doctor. The
comforting and reassuring words of the doctor are very powerful
and sometimes it creates miracle for the patients and strengthen 2
them to fight from within. That is why the doctors should
shoulder their responsibility with all care and caution, rise to the
occasion, believe in hard work and discipline and behave with all
sensibility not thinking only of their Everestian interest of
amassing huge wealth burying larger collective interest of
common men which would strengthen the patient-doctor
relationship.
The petitioner Dr. Subas Chandra Dash has filed this
revision petition challenging the impugned order dated
23.02.2013 passed by the learned S.D.J.M., Bolangir in G.R.
Case No. 447 of 2013 arising out of Bolagir Town P.S. Case
No.170 of 2012 in taking cognizance of offence under section
304 Part-II of the Indian Penal Code and issuance of process
against him.
2. One Susanta Kumar Thakur filed a complaint petition
before the learned S.D.J.M., Bolangir on 11.05.2012 against the
petitioner and another Dr. Narayan Thanapati, on the basis of
which I.C.C. Case No.34 of 2012 was registered.
The prosecution case as per the complaint petition is
that the complainant admitted his wife Rajeswari Thakur
(hereafter ‘the deceased’) for delivery in Women’s Care Nursing
Home, Manoharpur on 24.03.2012 at about 8.00 a.m. which 3
belonged to the petitioner who after check up of the deceased
told that she was in normal condition. The petitioner placed one
tablet inside the vagina of the deceased as a result of which
there was heavy vaginal watery discharge and she also felt
severe pain. After some time, the petitioner gave one saline and
injection and told that the deceased would be alright within
fifteen minutes. Then the petitioner used hand gloves and
though forceps tried to pull out the baby from the womb of the
deceased, as a result of which there was profuse bleeding due to
rupture of uterus. After sometime, the petitioner referred the
deceased in a serious condition to District Headquarters Hospital,
Bolangir by arranging one vehicle. It is the further case of the
complainant that the health condition of the deceased
deteriorated when she was admitted in the District Headquarters
Hospital, Bolangir. The referral slip issued by the petitioner was
produced by the complainant before Dr. Narayan Thanapati who
was the gynaecologist in the said hospital. It is further stated
that even at the Government Hospital, the deceased was not
treated properly by Dr. Thanapati till 10.00 p.m. and for the
negligent treatment of the petitioner and Dr. Thanapati, the
deceased as well as the baby in the unborn condition died. Dr.
Thanapati asked the complainant to take the dead body of the 4
deceased immediately from the hospital. The mental condition of
the complainant was not good for which he took the dead body
of his wife from the hospital to Sundargarh and with the help of
the in-laws’ family members of the complainant, the dead body
was cremated.
3. The matter was reported in Town Police Station,
Bolangir on 27.03.2012 but no action was taken for which the
complaint petition was filed. The learned S.D.J.M., Bolangir sent
the complaint petition to the Inspector in Charge, Town Police
Station, Bolangir under section 156(3) of Cr.P.C. to treat it as
F.I.R. and to investigate the case. Accordingly, Bolangir Town
P.S. Case No.170 of 2012 was registered on 22.06.2012 under
sections 304 and 201 of the Indian Penal Code against the
petitioner and Dr. Narayan Tahanapati.
During course of investigation, the Investigating
Officer examined the complainant, seized the original treatment
papers of the deceased in the Nursing Home of the petitioner on
different dates so also the sonography test report on the
production by the complainant. The bed head ticket of the
deceased regarding her admission at D.H.H., Bolangir and her
treatment papers at D.H.H., Bolangir were also seized. The 5
investigating officer examined the witnesses and visited the
Women’s Care Nursing Home.
During examination of the witnesses, he found that
the deceased Rajeswari Thakur was admitted in Women’s Care
Nursing Home of the petitioner on 24.03.2012 at 8.00 a.m. and
then she was admitted at D.H.H., Bolangir on the same day at
7.30 p.m. in a critical condition with profuse bleeding due to
rupture of uterus. The investigating officer sent requisition to the
CDMO, D.H.H, Bolangir to form a team of doctors and to enquire
regarding the alleged negligence in the treatment by the
petitioner as well as Dr. Narayan Thanapati of D.H.H., Bolangir.
The investigating officer seized the original certificate of
registration under section 19(1) of PNDT Act,1994, renewal of
registration to establish/maintain a clinical establishment valid
from 28.04.2009 to 27.04.2011 in original, application for
renewal of Women’s Care Nursing Home, Manoharpur in original
dated 17.02.2012, degree of M.D. (O & G), registration of
M.B.B.S. and M.D. in original on production by the petitioner
which were left in the zima of the petitioner under proper
zimanama after keeping the xerox copy of the documents. The
investigating officer received the enquiry report of CDMO,
D.H.H., Bolangir wherein it is indicated Dr. Thanapati applied 6
adequate professional scheme and timely intervention in
managing the patient and in spite of all possible treatment given
by Dr. Thanapati, the deceased expired. However the team of
doctors could not give any definite opinion regarding the role
played by the petitioner in the treatment of the deceased and
suggested for further investigation.
During course of investigation, after examining the
witnesses and also verifying the documents, the investigating
officer came to the conclusion that the deceased died due to the
act of the petitioner who was the owner of Women’s Care
Nursing Home who though had no intention of causing death of
the deceased but had sufficient knowledge that such bodily
injury i.e. rupture of uterus caused due to pulling out the unborn
baby forcefully by means of forceps was enough to accelerate
the death and cause death in ordinary course of nature. It was
further concluded that the petitioner was responsible for the
death of the baby in the womb of the deceased since no proper
remedies and treatment was given to pull out the baby from the
mother’s womb while alive. The investigating officer sent a query
to CDMO, Bolangir regarding inquiry to be conducted by team of
doctors as to whether there was adequate facility and
infrastructure available for the treatment of such type of cases7
as the deceased suffered. The query report was received which
indicated that only normal delivery can be performed in the
Women’s Care Nursing Home. The investigating officer was of
the opinion that the petitioner knowingly kept the deceased in
the Nursing Home with assurance to the complainant for normal
delivery. Despite repeated approach of the complainant, the
petitioner did not advise him to take the deceased to D.H.H.,
Bolangir rather he pulled the unborn baby by means of forceps
forcibly causing rupture of her uterus, as a result of which there
was profuse bleeding and the condition of the deceased became
serious and at the last moment, when the petitioner failed to
make successful delivery, he arranged a vehicle and sent the
deceased to D.H.H., Bolangir and such omission and commission
of the petitioner in the treatment of the deceased resulted in her
death along with the unborn baby.
After receipt of the order of the Superintendent of
Police, Bolangir, charge sheet was submitted against the
petitioner on 31.02.2013 under section 304 of the Indian Penal
Code.
4. The learned Magistrate on a perusal of the
chargesheet, case diary and other connected papers being prima
facie satisfied regarding the commission of offence under section 8
304 Part-II of the Indian Penal Code, took cognizance of such
offence and issued process against the petitioner which is
impugned in the case.
5. Mr. Trilochan Nanda, learned counsel for the
petitioner contended that the impugned order is illegal, unjust
and improper and has been passed in a mechanical manner
without application of mind. According to Mr. Nanda, on a bare
perusal of the First Information Report, charge sheet, statements
of the witnesses recorded under section 161 of Cr.P.C., inquiry
report submitted by the CDMO, Bolangir and other materials
available on record, no case under section 304 Part-II of the
Indian Penal Code is made out and therefore, the impugned
order of cognizance is not sustainable in the eye of law. It is
further contended that the petitioner has been charge sheeted
with an ulterior motive while another doctor i.e., Dr. Thanapati
has been exonerated by the police. He further emphasized that
when no post mortem has been conducted on the dead body of
the deceased to ascertain the truth of the accusation, the
prosecution case that the deceased suffered from internal injury
and rupture of uterus at Women’s Care Nursing Home cannot be
accepted. He further contended that the CDMO, Bolangir along
with a team of doctors enquired about the alleged negligence 9
and treatment by the petitioner which was conducted on the
request of the Investigating Officer and the inquiry report
revealed that the deceased was not admitted as an indoor
patient in Women’s Care Nursing Home rather the OPD register
of the said Nursing Home revealed the name of the deceased in
sl. No.477 dated 24.03.2012. It is contended that when the
deceased was brought to the Nursing Home, she was diagnosed
as a case of Abruptio Placentae causing concealed hemorrhage
and the condition of the deceased was very low for which one
vial of ceftriaxone injection was administered intravenously and
she was referred to D.H.H., Bolangir. It is contended that unless
this Court exercises its revisional jurisdiction and quash the
impugned order, there would be miscarriage of justice. The
learned counsel for the petitioner in support of his contention
that there was no medical negligence, placed reliance in the
cases of Jacob Mathew -Vrs.- State of Punjab reported in
(2005) 32 Orissa Criminal Reports (SC) 175, Dr. Suresh
Gupta -Vrs.- N.C.T. of Delhi reported in (2004) 29 Orissa
Criminal Reports (SC) 38, Mahadev Prasad Kaushik -Vrs.-
State of U.P. reported in (2008) 41 Orissa Criminal
Reports (SC) 825, A.S.V Narayanan Rao -Vrs.- Ratnamala
and another reported in (2013) 56 Orissa Criminal 10
Reports (SC) 789 and Kusum Sharma -Vrs.- Batra Hospital
and Medical Research Centre reported in A.I.R. 2010 S.C.
1050.
6. Mr. Deepak Kumar Pani, learned Addl. Standing
counsel on the other hand placed the 161 Cr.P.C. statements of
the complainant Susanta Kumar Thakur and other witnessees so
also of Dr. Narayan Thanapati. The learned counsel for the State
further placed the enquiry report which indicates that the cause
of death was shock and bleeding due to rupture of uterus. He
placed the report of the CDMO, Bolangir which indicates that only
normal delivery could have been performed in the Nursing Home
of the petitioner. It is contended by the learned counsel that the
statements of the complainant, Dr. Narayan Thanapati and other
witnesses and the surrounding circumstances clearly indicates
that there was an attempt to pull out the unborn baby from the
womb of the deceased by using forceps for which there was
rupture of uterus and heavy bleeding as reasonable care was not
taken. The learned counsel for the State further submitted that
the manner in which everything was done by the petitioner in his
private Nursing Home clearly makes out the ingredients of
offence and the points raised by the learned counsel for the
petitioner can be taken note of during course of trial but not at 11
this stage and therefore, the revision petition should be
dismissed.
7. There are certain undisputed facts which are as
follows:-
(i) the petitioner was having degree of M.D.
(Obstetrics and Gynecology).
(ii) Director of Medical Education and Training,
Odisha, Bhubaneswar issued certificate of renewal of registration
of the Nursing Home of the petitioner for a period of two years
from 28.04.2011 to 27.04.2013 under the Odisha Clinical
Establishments (Control and Regulation) Act, 1990 and Odisha
Clinical Establishments (Control and Regulation) Rules, 1994 and
Orissa Clinical Establishment (Control and Regulation)
Amendment Rules, 2006.
(iii) the report of the Chief District Medical Officer,
Bolangir dated 07.11.2012 indicates that only normal delivery
can be performed in the Women’s Care Nursing Home which was
having only two beds.
(iv) the enquiry report of a team of doctors which was
submitted by the CDMO, Bolangir before the Inspector in Charge,
Town Police Station, Bolangir indicates that so far as the
petitioner is concerned, there are contradictory statements of the 12
witnesses relating to time of attending the clinic and whether the
patient was admitted as indoor patient or not, mode of treatment
and nature of intervention given, times spent in the Nursing
Home, type of bleeding (concealed or visible) and identification
of the driver and vehicle used for transportation of patient and
therefore, it was indicated that no definite opinion can be given
regarding the role of the petitioner in the treatment of the
deceased.
8. The learned counsel for the petitioner contended that
the deceased was brought to the Nursing Home in the evening
hours around 6.00 p.m. on 24.03.2012 and she was never
treated as an indoor patient that would be clear from the OPD
register and after one vial of ceftriaxone injection was
administered intravenously, she was referred to D.H.H.,
Bolangir. The statements of the complainant Susanta Kumar
Thakur and other witnesses on the other hand indicate that the
deceased was in the hospital since morning at about 8.00 a.m.
on 24.03.2012 and petitioner placed one tablet inside the vagina
of the deceased at about 3.00 p.m. as a result of which there
was heavy vaginal watery discharge and she also felt severe pain
and at about 4.30 p.m., the petitioner gave one saline and
injection to the deceased but the pain subsisted. It further 13
reveals that at about 6.45 p.m. again the petitioner checked the
deceased using gloves and told that the deceased would be
alright within fifteen minutes and at about 7.00 p.m. when the
pain became unbearable, the petitioner told the complainant that
he would pull out the baby by using forceps. Ten minutes
thereafter, the deceased was taken to the labour room and
inside the labour room, the petitioner forcibly tried to pull out the
baby by forceps as a result of which there was severe bleeding
and then the petitioner called a vehicle and asked the
complainant to immediately shift the deceased to D.H.H.,
Bolangir.
Even though there is no documentary evidence
relating to the indoor admission of the deceased in the Nursing
Home and the O.P.D. register of the Nursing Home indicates that
the deceased was diagnosed as G3P2 in labour with antepartum
haemorrhage but in view of the consistent statements of the
witnesses relating to the admission of the deceased since
morning on 24.03.2012 and time to time treatment given in the
Nursing Home till in the evening when he was referred to D.H.H.,
Bolangir, at this stage, basing on the documentary evidence,
such statements cannot be discarded. Needless to say, the Trial
Court has to appreciate the evidence at appropriate stage 14
without getting influenced by the observations of this Court, as
they are prima facie.
It is the prosecution case that even though only
normal delivery facility was available in the Women’s Care
Nursing Home and patient was diagnosed as G3P2 in labour with
antepartum haemorrhage, the conduct of the petitioner in
detaining such patient from the morning till evening and
attempting for a forceps delivery is nothing but reflects a case of
gross medical negligence on the part of the petitioner which
ultimately took away the life of the deceased and the unborn
child. The hazard taken by the petitioner, according to the
prosecution was of such a nature that the death which resulted
was most likely imminent. Though it is the contention of the
learned counsel for the petitioner that there was no such attempt
of forceps delivery in the Nursing Home but it is too early to
accept such contentions at this stage in view of the available
materials on record.
9. Let me first discuss the cases cited at the Bar on
medical negligence by the learned counsel for the petitioner. In
the case of Jacob Mathew -Vrs.- State of Punjab reported in
(2005) 32 Orissa Criminal Reports (SC) 175, it is held as
follows:-15
“49. We sum up our conclusions as under:-
(1) Negligence is the breach of a duty caused by
omission to do something which a reasonable
man guided by those considerations which
ordinarily regulate the conduct of human affairs
would do, or doing something which a prudent
and reasonable man would not do. The definition
of negligence as given in Law of Torts, Ratanlal
& Dhirajlal (edited by Justice G.P. Singh),
referred to hereinabove, holds good. Negligence
becomes actionable on account of injury
resulting from the act or omission amounting to
negligence attributable to the person sued. The
essential components of negligence are three:
'duty', 'breach' and 'resulting damage'.
(2) Negligence in the context of medical
profession necessarily calls for a treatment with
a difference. To infer rashness or negligence on
the part of a professional, in particular a doctor,
additional considerations apply. A case of
occupational negligence is different from one of
professional negligence. A simple lack of care,
an error of judgment or an accident, is not proof
of negligence on the part of a medical
professional. So long as a doctor follows a
practice acceptable to the medical profession of
that day, he cannot be held liable for negligence
merely because a better alternative course or
method of treatment was 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 16
particular happening cannot be the standard for
judging the alleged negligence. So also, the
standard of care, while assessing the practice as
adopted, is judged in the light of knowledge
available at the time of the incident, and not at
the date of trial. Similarly, when the charge of
negligence arises out of failure to use some
particular equipment, the charge would fail if the
equipment was not generally available at that
particular time (that is, the time of the incident)
at which it is suggested it should have been
used.
(3) A professional may be held liable for
negligence on one of the two findings: either he
was not possessed of the requisite skill which he
professed to have possessed, or, he did not
exercise, with reasonable competence in the
given case, the skill which he did possess. The
standard to be applied for judging, whether the
person charged has been negligent or not, would
be that of an ordinary competent person
exercising ordinary skill in that profession. It is
not possible for every professional to possess
the highest level of expertise or skills in that
branch which he practices. A highly skilled
professional may be possessed of better
qualities, but that cannot be made the basis or
the yardstick for judging the performance of the
professional proceeded against on indictment of
negligence.
(4) The test for determining medical negligence
as laid down in Bolam's case (1957) 1 W.L.R.
582 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 17
amount to an offence, the element of mens rea
must be shown to exist. For an act to amount to
criminal negligence, the degree of negligence
should be much higher i.e. gross or of a very
high degree. Negligence which is neither gross
nor of a higher degree may provide a ground for
action in civil law but cannot form the basis for
prosecution.
(6) The word 'gross' has not been used in
Section 304-A 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 304-A of the IPC has to be
read as qualified by the word 'grossly'.
(7) To prosecute a medical professional for
negligence under criminal law, it must be shown
that the accused did something or failed to do
something which in the given facts and
circumstances no medical professional in his
ordinary senses and prudence would have done
or failed to do. The hazard taken by the accused
doctor should be of such a nature that the injury
which resulted was most likely imminent.
(8) Res ipsa loquitur is only a rule of evidence
and operates in the domain of civil law specially
in cases of torts and helps in determining the
onus of proof in actions relating to negligence. It
cannot be pressed in service for determining per
se the liability for negligence within the domain
of criminal law. Res ipsa loquitur has, if at all, a
limited application in trial on a charge of criminal
negligence.
xx xx xx xx
53. Statutory Rules or Executive Instructions
incorporating certain guidelines need to be 18
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, we propose to lay 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 to
the facts collected in 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 the case of Dr. Suresh Gupta –Vrs.- N.C.T. of
Delhi, reported in (2004) 29 Orissa Criminal Reports (SC)
38, it is held as follows:-19
“20. For fixing criminal liability on a doctor or
surgeon, the standard of negligence required to
be proved should be so high as can be described
as "gross negligence" or “recklessness". It is not
merely lack of necessary care, attention and
skill. The decision of the House of Lords in R. V.
Adomako (Supra) relied upon on behalf of the
doctor elucidates the said legal position and
contains following observations:-
"Thus a doctor cannot be held criminally
responsible for patient's death unless his
negligence or incompetence showed such
disregard for life and safety of his patient as to
amount to a crime against the State."
21. Thus, when a patient agrees to go for
medical treatment or surgical operation, every
careless act of the medical man cannot be
termed as 'criminal'. It can be termed 'criminal'
only when the medical men exhibits a gross lack
of competence or inaction and wanton
indifference to his patient's safety and which is
found to have arisen from gross ignorance or
gross negligence. Where a patient's death
results merely from error of judgment or an
accident, no criminal liability should be attached
to it. Mere inadvertence or some degree of want
of adequate care and caution might create civil
liability but would not suffice to hold him
criminally liable.
22. This approach of the courts in the matter of
fixing criminal liability on the doctors, in the
course of medical treatment given by them to
their patients, is necessary so that the hazards
of medical men in medical profession being
exposed to civil liability, may not unreasonably
extend to criminal liability and expose them to 20
risk of landing themselves in prison for alleged
criminal negligence.
23. For every mishap or death during medical
treatment, the medical man cannot be
proceeded against for punishment. Criminal
prosecutions of doctors without adequate
medical opinion pointing to their guilt would be
doing great disservice to the community at large
because if the courts were to impose criminal
liability on hospitals and doctors for everything
that goes wrong, the doctors would be more
worried about their own safety than giving all
best treatment to their patients. This would lead
to shaking the mutual confidence between the
doctor and patient. Every mishap or misfortune
in the hospital or clinic of a doctor is not a gross
act of negligence to try him for an offence of
culpable negligence.
24. No doubt in the present case, the patient
was a young man with no history of any heart
ailment. The operation to be performed for nasal
deformity was not so complicated or serious. He
was not accompanied even by his own wife
during the operation. From the medical opinions
produced by the prosecution, the cause of death
is stated to be 'not introducing a cuffed
endotracheal tube of proper size as to prevent
aspiration of blood from the wound in the
respiratory passage'. This act attributed to the
doctor, even if accepted to be true, can be
described as negligent act as there was lack of
due care and precaution. For this act of
negligence he may be liable in tort but his
carelessness or want of due attention and skill
cannot be described to be so reckless or grossly
negligent as to make him criminally liable.”21
In the case of Mahadev Prasad Kaushik -Vrs.-
State of U.P. reported in (2008) 41 Orissa Criminal
Reports (SC) 825, it is held as follows:-
“23. Plain reading of the above section makes it
clear that it is in two parts. The first part of the
section is generally referred to as "Section 304,
Part I", whereas the second part as
"Section 304, Part II". The first part applies
where the accused causes bodily injury to the
victim with intention to cause death; or
with intention to cause such bodily injury as is
likely to cause death. Part II, on the other hand,
comes into play when death is caused by doing
an act with knowledge that it is likely to cause
death, but without any intention to cause death
or to cause such bodily injury as is likely to
cause death.
xx xx xx xx
26. Before Section 304 can be invoked, the
following ingredients must be satisfied;
(i) the death of the person must have been
caused;
(ii) such death must have been caused by the
act of the accused by causing bodily injury;
(iii) there must be an intention on the part of the
accused
(a) to cause death; or
(b) to cause such bodily injury which is likely to
cause death; (Part I) or
(iv) there must be knowledge on the part of the
accused that the bodily injury is such that it is
likely to cause death (Part II).22
27. Section 304-A was inserted by the Indian
Penal Code (Amendment) Act, 1870 (Act XXVII
of 1870) and reads thus;
304-A. Causing death by negligence
Whoever causes the death of any person by
doing any rash or negligent act not amounting to
culpable homicide, shall be punished with
imprisonment of either description for a term
which may extend to two years, or with fine, or
with both.
28. The section deals with homicidal death by
rash or negligent act. It does not create a new
offence. It is directed against the offences
outside the range of Sections 299 and 300, IPC
and covers those cases where death has been
caused without `intention’ or `knowledge'. The
words "not amounting to culpable homicide" in
the provision are significant and clearly convey
that the section seeks to embrace those cases
where there is neither intention to cause death,
nor knowledge that the act done will in all
probability result into death. It applies to acts
which are rash or negligent and are directly the
cause of death of another person.
29. There is thus distinction between
Section 304 and Section 304-A. Section 304-A
carves out cases where death is caused by doing
a rash or negligent act which does not amount
to culpable homicide not amounting to murder
within the meaning of Section 299 or culpable
homicide amounting to murder under
Section 300, IPC. In other words, Section 304- A
excludes all the ingredients of Section 299 as
also of Section 300. Where intention or
knowledge is the `motivating force' of the act
complained of, Section 304-A will have to make
room for the graver and more serious charge of 23
culpable homicide not amounting to murder or
amounting to murder as the facts disclose. The
section has application to those cases where
there is neither intention to cause death nor
knowledge that the act in all probability will
cause death.”
xx xx xx xx
46. On the facts of the case, ailment of Buddha
Ram prima facie could not be said to be of such
a serious nature which would result in death
during his treatment. The allegation of the
complainant which has been corroborated by
statements of other eye-witnesses is that
immediately after administration of three
injections, the colour of the body of Buddha Ram
turned into blue and within half an hour he died.
If in the light of the above facts and
circumstances, proceedings have been initiated
against the appellant for an offence punishable
under Section 304-A, IPC (though not under
Section 304, IPC), it cannot be said that no such
action could be taken. We are, therefore, of the
view that submission on behalf of the learned
Counsel for the complainant deserves to be
accepted to the above extent.”
In the case of A.S.V. Narayanan Rao -Vrs.-
Ratnamala and another, reported in (2013) 56 Orissa
Criminal Reports (SC) 789, it is held as follows:-
“12. From the final report submitted by the police
in the instant case, it can be gathered that the
records pertaining to the treatment given to the
deceased were forwarded to the Andhra Pradesh
Medical Council and also the Medical Council of
India which opined that the "doctors seem to 24
have made an attempt to do their best as per
records".
13. However, the High Court thought it fit to
continue the prosecution of the Appellant for two
reasons (1) that the Appellant chose to conduct
the angioplasty without having a surgical
standby unit and such failure resulted in delay of
5 hours in conducting by-pass after the
angioplasty failed; and (2) that the Appellant did
not consult a Cardio Anesthesian before
conducting an angioplasty. According to the High
Court, both the above-mentioned 'lapses' on the
part of the Appellant "clearly show the
negligence" of the Appellant.
14. The basis for such conclusion though not
apparent from the judgment, we are told by the
learned Counsel for the first Respondent, is to be
found in the evidence of Dr. Surajit Dan given
before the A.P. State Consumer Redressal
Commission in C.D. No. 38 of 2004. It may also
be mentioned here that apart from initiating
criminal proceedings against the Appellant and
Ors., the first Respondent also raised a
consumer dispute against the Appellant and
others. It is in the said proceedings, the abovementioned
Dr. Dan's evidence was recorded
wherein Dr. Dan in his cross-examination stated
as follows:
“...Whenever Cardiologist performs an
angioplasty, he requests for the surgical team to
be ready as standby. I was not put on standby
in the instant case....”
He further stated;
“...The failure of angioplasty put the heart in a
compromised position of poor coronary perfusion
that increases the risk of the emergency surgery 25
after that. In a planned coronary surgery, the
risk is less than in an emergency surgery....”
However, the same doctor also stated;
“...The time gap between the angioplasty failure
and the surgery is not THE FACTOR for the death
of the patient. The time gap may or may not be
a factor for the enhancement of the risk.”
15. Unfortunately, the last of the above
extracted statements of Dr. Surajit Dan is not
taken into account by the High Court which
statement according to us is most crucial in the
context of criminal prosecution of the Appellant.
16. The High Court unfortunately overlooked this
factor. We, therefore, are of the opinion that the
prosecution of the Appellant is uncalled for as
pointed out by this Court in Jacob Mathew
case (supra) that the negligence, if any, on the
part of the Appellant cannot be said to be
"gross". We, therefore, set aside the judgment
under appeal and also the proceedings of the
trial court dated 11.12.2006.”
In the case of Kusum Sharma -Vrs.- Batra
Hospital and Medical Research Centre, reported in A.I.R.
2010 S.C. 1050, it is held as follows:-
“91. 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.26
xx xx xx xx
94. On scrutiny of the leading cases of medical
negligence both in our country and other
countries specially United Kingdom, some basic
principles emerge in dealing with the cases of
medical negligence. While deciding whether the
medical professional is guilty of medical
negligence following well known principles must
be kept in view:-
I. Negligence is the breach of a duty exercised
by omission to do something which a reasonable
man, guided by those considerations which
ordinarily regulate the conduct of human affairs,
would do, or doing something which a prudent
and reasonable man would not do.
II. Negligence is an essential ingredient of the
offence. The negligence to be established by the
prosecution must be culpable or gross and not
the negligence merely based upon an error of
judgment.
III. The medical professional is expected to bring
a reasonable degree of skill and knowledge and
must exercise a reasonable degree of care.
Neither the very highest nor a very low degree
of care and competence judged in the light of
the particular circumstances of each case is what
the law requires.
IV. A medical practitioner would be liable only
where his conduct fell below that of the
standards of a reasonably competent
practitioner in his field.
V. In the realm of diagnosis and treatment,
there is scope for genuine difference of opinion
and one professional doctor is clearly not
negligent merely because his conclusion differs
from that of other professional doctor.27
VI. The medical professional is often called upon
to adopt a procedure which involves higher
element of risk, but which he honestly believes
as providing greater chances of success for the
patient rather than a procedure involving lesser
risk but higher chances of failure. Just because a
professional looking to the gravity of illness has
taken higher element of risk to redeem the
patient out of his/her suffering which did not
yield the desired result may not amount to
negligence.
VII. Negligence cannot be attributed to a doctor
so long as he performs his duties with
reasonable skill and competence. Merely
because the doctor chooses one course of action
in preference to the other one available, he
would not be liable if the course of action chosen
by him was acceptable to the medical
profession.
VIII. It would not be conducive to the efficiency
of the medical profession if no doctor could
administer medicine without a halter round his
neck.
IX. It is our bounden duty and obligation of the
civil society to ensure that the medical
professionals are not unnecessary harassed or
humiliated so that they can perform their
professional duties without fear and
apprehension.
X. The medical practitioners at times also have
to be saved from such a class of complainants
who use criminal process as a tool for
pressurizing the medical professionals/hospitals
particularly private hospitals or clinics for
extracting uncalled for compensation. Such
malicious proceedings deserve to be discarded
against the medical practitioners.28
XI. The medical professionals are entitled to get
protection so long as they perform their duties
with reasonable skill and competence and in the
interest of the patients. The interest and welfare
of the patients have to be paramount for the
medical professionals.
95. In our considered view, the aforementioned
principles must be kept in view while deciding
the cases of medical negligence. We should not
be understood to have held that doctors can
never be prosecuted for medical negligence. As
long as the doctors have performed their duties
and exercised an ordinary degree of professional
skill and competence, they cannot be held guilty
of medical negligence. It is imperative that the
doctors must be able to perform their
professional duties with free mind.”
10. The expression “cognizance” indicates the point when
a Magistrate or a Court takes judicial notice of an offence. It is
the condition precedent for the initiation of proceeding by the
Magistrate. At the stage of taking cognizance, adequacy of
evidence for supporting the conviction shall not be seen by the
Court. The Magistrate should not enter into meticulous
examination and shifting of evidence as a Trial Court. At this
stage, Magistrate is not required to consider the defence version
nor is he required to evaluate the merits of the materials or
evidence of the prosecution. If the Magistrate is prima facie
satisfied that an offence has been committed, he has to pass
necessary orders in consonance with section 190 of Cr.P.C. At 29
the stage of taking cognizance and issuing summons, the
allegations contained in the charge sheet are assumed to be true
unless the allegations are patently absurd and inherently
improbable.
11. The petitioner was having degree of M.D. (Obstetrics
and Gynaecology) and therefore, it can be presumed that there
was no lack of competence to handle the case of the deceased.
The records indicate that Director of Medical Education and
Training, Odisha, Bhubaneswar has issued certificate of renewal
of registration of the Women’s Care Nursing Home which was
valid at the time of occurrence. The report of the C.D.M.O.,
Bolangir indicates that Odisha Pollution Control Board had issued
the certificate to keep four beds in the Nursing Home of the
petitioner where there were only two beds. The report further
indicates that normal delivery can be performed in the Nursing
Home. The OPD register of the Nursing Home indicates that
patient was diagnosed as G3P2 in labour with ‘antepartum
haemorrhage’.
What is G3P2 in labour? In medical science,
gravidity is defined as the number of times that a woman has
been pregnant and parity is defined as the number of times that
she has given birth to a fetus with a gestational age of 24 weeks 30
or more, regardless of whether the child was born alive or was
stillborn. For example, a woman who is described as 'gravida 2
para 2’ (sometimes abbreviated to G2P2) has had two
pregnancies and two deliveries after 24 weeks, and a woman
who is described as 'gravida 2 para 0' (G2P0) has had two
pregnancies, neither of which survived to a gestational age of 24
weeks. If they are both currently pregnant again, these women
would have the obstetric resume of G3P2 and G3P0
respectively.
According to medical science, ‘antepartum
haemorrhage’ is defined as bleeding from genital tract after 20
weeks of pregnancy and before completion of second stage of
labour. It is a major cause of maternal morbidity, mortality and
perinatal loss. Clinical presentation varies depending on the
severity of blood loss and cause of bleeding. In mild
haemorrhage, there may be no maternal or foetal compromise,
while massive haemorrhage can lead to hypovolemic shock,
coagulation failure, renal failure, foetal distress and may result in
maternal and foetal death. All the patients of antepartum
haemorrhage should be hospitalised in a well equipped centre
with facilities for blood transfusion, emergency caesarean section
and neonatal care unit. 31
If the placenta is introduced in the normal position in
the superior part of the uterus, bleeding caused by premature
separation is called accidental haemorrhage that can happen
from pregnancy induced hypertension (high blood pressure) or
appear for no apparent reason. If bleeding is moderate, there is
no danger to the mother, but even a little amount can decrease
the supply of oxygen and nutrients to the foetus.
An antepartum haemorrhage may precipitate into
one of three main categories. Placenta praevia is a condition in
which the placenta, alternatively of being linked to the upper
part of the uterus, is touched to the lower part in the region of
the lesser uterine segment or the cervix.
Accidental antepartum haemorrhage (abruption
placentae) is a comparatively infrequent condition in which the
placenta is commonly implanted in the upper part of the uterus
but separate from it prematurely and generally results in vaginal
bleeding.
Placental abruption (abruptio placentae) is an
uncommon yet serious complication of pregnancy. The placenta
is a structure that develops in the uterus during pregnancy to
nourish the growing baby. If the placenta peels away from the
inner wall of the uterus before delivery either partially or 32
completely, it is known as placental abruption. Placental
abruption can deprive the baby of oxygen and nutrients and
cause heavy bleeding in the mother. Placental abruption often
happens suddenly. Left untreated, placental abruption puts both
mother and baby in jeopardy.
Treatment depends on the severity of the separation,
location of the separation and the age of the pregnancy. There
can be a partial separation or a complete (also called a
total) separation that occurs. There can also be different degrees
of each of these which will impact the type of treatment
recommended. In the case of a partial separation, bed rest and
close monitoring may be prescribed if the pregnancy has not
reached maturity. In some cases, transfusions and other
emergency treatment may be needed as well. In a case with
total or complete separation, delivery is often the safest course
of action. If the fetus is stable, vaginal delivery may be an
option. If the fetus is in distress or the mom is experiencing
severe bleeding, then a caesarean delivery would be necessary.
There is no treatment that can stop the placenta from detaching
and there is no way to reattach it. Any type of placental
abruption can lead to premature birth and low birth weight. In 33
cases where severe placental abruption occurs, approximately
15% will end in fetal death.
Incidental antepartum haemorrhage is a
haemorrhage which appears from the venereal tract but not
from the site of the placenta or its implantation. Such
haemorrhage may produce from injury, infection, ulcers on the
neck of the womb, polyps or, most normally, the onset of labour.
12. It is the prosecution case, even though only facility
for normal delivery was available in the Nursing Home, the
petitioner attempted a forceps delivery.
According to the medical science, a forceps delivery
is a type of assisted vaginal delivery. It is sometimes needed in
the course of vaginal childbirth. An assisted birth is necessary
when the baby needs help to be born with instruments that
attach to his head. It is also called an instrumental or operative
vaginal birth. Assisted births are often needed when labour has
been long and tiring. If the doctor thinks that an assisted birth is
possible, but could be difficult, the patient will be moved to the
operating theatre. This is in a case where caesarean is needed.
Assisted birth is less likely to be successful if the body mass
index (BMI) of the patient is over 30 or the baby is large or the
baby is lying back to back or the baby's head is not low down in 34
the birth canal. A forceps delivery might be considered if the
labour meets certain criteria i.e. the cervix is fully dilated, the
membranes have ruptured and the baby has descended into the
birth canal head first, but the patient is not able to push the
baby out. Prerequisites for forceps delivery include that the
clinical assessment of pelvic capacity should be performed. No
disproportion should be suspected between the size of the head
and the size of pelvic inlet and mid pelvis. The patient must have
adequate analgesia. Adequate facilities and supportive elements
should be available. The operator should be competent in the
use of the instruments and recognition and management of
potential complications. Forceps delivery has some benefits for a
fetus. It can be used to quickly deliver a baby in distress, often
preventing potential asphyxiation and brain damage, although
both may still occur. Negative fetal effects from forceps use
include possible facial bruising, lacerations, intracranial
haemorrhage and skull fracture. In rare cases, death of the fetus
can occur. Temporary facial nerve paralysis, with drooping noted
on one side of the face, usually resolves within a few weeks. Use
of forceps can cause cervical and vaginal lacerations and may
extend an episiotomy or tear into the anus and rectum. If the
bladder is not emptied with a catheter, damage to the bladder 35
may also occur. Infection, haemorrhage requiring transfusions,
uterine lacerations and injury to the pelvic nerve are also
possible complications. A forceps delivery is only appropriate in a
birthing centre or hospital where a caesarean section can be
done, if needed.
13. The enquiry report reveals that if the statements of
the complainant and witnesses produced by him are to be
believed then there was visible bleeding when the patient was
referred from the Nursing Home to the D.H.H., Bolangir and
therefore, the possibility of rupture of uterus of the deceased at
the Nursing Home cannot be ruled out. The statements of Saroj
Mohanty and Dillip Thakur who accompanied the complainant
and the deceased to the Nursing Home indicate about severe
bleeding from the vagina of the deceased after the attempt of
forceps delivery by the petitioner. The statements of Rintu @
Rashmin Thakur who arrived at the Nursing Home at about 5
p.m. on the date of occurrence and Sadananda Gahir, the driver
of the Bolero vehicle also indicate about such severe bleeding.
The statement of Dr. Narayan Thanapati who treated the
deceased at D.H.H., Bolangir also indicate there was rupture of
uterus of the deceased when she was brought from the Nursing
Home of the petitioner and there was risk to the lives of the 36
deceased and unborn baby. The statement of Chanchala Sahu
who also delivered a child on that day in the Nursing Home
indicates about the admission of the deceased in the Nursing
Home at about 8 a.m. The enquiry report further indicates that
the only option available to control the bleeding was laparotomy
(surgical opening of abdomen) and repair of rupture/ subtotal
hysterectomy which is a major surgical procedure and could not
be undertaken even at D.H.H., Bolangir due to critically low
condition of the patient.
It prima facie appears as per the report of CDMO,
Bolangir that only normal delivery facilities were available in the
Women’s Care Nursing Home. The deceased was diagnosed as
G3P2 in labour with ‘antepartum haemorrhage’. According to
medical science, patient of ‘antepartum haemorrhage’ should be
hospitalised in a well equipped centre with facilities for blood
transfusion, emergency caesarean section and neonatal care
unit. Being a gynaecologist, the petitioner must be aware about
nature of treatment to be provided to such patient and the
consequence likely to follow if the safeguards are not properly
taken. Even if no such facilities to deal with such patient was
available in the Nursing Home, the petitioner did not advise the
complainant to take the deceased to D.H.H., Bolangir rather 37
assured the complainant that the deceased was in normal
condition. When there was heavy vaginal watery discharge after
the petitioner inserted one tablet inside the vagina of the
deceased and she felt severe pain, the petitioner gave one saline
and injection and told the complainant that the deceased would
be alright within fifteen minutes. Thus prima facie materials are
available on record to show that the petitioner knowingly kept
the deceased in the Nursing Home with assurance to the
complainant for normal delivery even though he was aware that
it was a critical case and there are no such facilities in the
Nursing Home to deal with such case. The attempt of forceps
delivery appears to have caused rupture of her uterus, as a
result of which there was profuse bleeding and the condition of
the deceased became serious. The forceps delivery was not
appropriate in a birthing centre like the Nursing Home of the
petitioner where a caesarean section could not have been done,
if needed. It was not an unforeseen injurious occurrence which
could not be reasonably anticipated but creation of a substantial
and unjustifiable risk of harm to the deceased by a conscious
disregard for that risk. Therefore, it is prima facie apparent that
the petitioner did such a high degree of negligence while dealing
with the case of the deceased which in the facts and 38
circumstances no medical professional in his ordinary senses and
prudence would have done. The hazard taken by the petitioner
was of such a nature that the rupture of the uterus and severe
bleeding and risk to the lives of the mother and the unborn baby
was most likely imminent. The petitioner prima facie appears to
have not exercised the skill with reasonable competence and did
not adopt the practice acceptable to the medical profession of
that day. As a doctor, it was the duty of the petitioner to explain
the deceased or at least the complainant, chances of success and
the risk of failure of the suggested treatment and inform them
about the foreseeable risks and possible negative effects of the
treatment keeping in mind the patient's specific condition. The
independent and competent medical opinion given by the team
of doctors, the statements of the witnesses and the other
surrounding circumstances raise accusing fingers at the
petitioner which is not at all healthy sign for medical profession.
In order to attract the ingredients of offence under
section 304 Part II of the Indian Penal Code, there must be
commission of culpable homicide not amounting to murder i.e.
the death of the person must have been caused, such death
must have been caused by the act of the accused by causing
bodily injury and there must be knowledge on the part of the 39
accused, but without any intention that the bodily injury is such
that it is likely to cause death. To constitute the offence of
‘culpable homicide’ as defined in section 299 of the Indian Penal
Code, the death must be caused by doing an act: (a) with the
intention of causing death, or (b) with the intention of causing
such bodily injury as is likely to cause death, or (c) with the
knowledge that the doer is likely by such act to cause death.
Section 304-A of the Indian Penal Code on the other
hand carves out a specific offence where death is caused by
doing a rash or negligent act and that act does not amount to
culpable homicide under section 299 Indian Penal Code or
murder under section 300 Indian Penal Code. Where the
intention to kill a person or knowledge that doing of an act was
likely to cause a person's death are there, section 304-A of the
Indian Penal Code has to make room for the graver and more
serious charge of culpable homicide. Negligence and rashness
are essential elements under section 304-A of the Indian Penal
Code. In other words, the applicability of section 304-A of the
Indian Penal Code is limited to rash or negligent acts which
cause death but fall short of culpable homicide amounting to
murder or culpable homicide not amounting to murder.40
In case of Alister Anthony Pareira -Vrs.- State of
Maharashtra reported in (2012) 2 Supreme Court Cases
648, it is held as follows:-
“47. Each case obviously has to be decided on its
own facts. In a case where negligence or
rashness is the cause of death and nothing
more, Section 304-A may be attracted but
where the rash or negligent act is preceded with
the knowledge that such act is likely to cause
death, Section 304 Part II IPC may be attracted
and if such a rash and negligent act is preceded
by real intention on the part of the wrongdoer to
cause death, offence may be punishable under
Section 302 IPC.”
14. Thus, looking to the matter from all angles, I have no
doubt in my mind that knowledge cannot be attributed to
petitioner that his act might cause such bodily injuries which
may, in ordinary course of nature, be sufficient to cause death
Thus, in my opinion, there are no prima facie materials for
commission of an offence under section 304 Part II of the Indian
Penal Code. However, there are sufficient materials to proceed
against the petitioner under section 304-A of the Indian Penal
Code as due to his rash or negligent acts, death of the deceased
was caused which falls short of culpable homicide not amounting
to murder.41
15. Accordingly, the impugned order of taking cognizance
of offence under section 304 Part-II of the Indian Penal Code by
the learned S.D.J.M., Bolangir in G.R. Case No. 447 of 2013
stands quashed, instead the learned S.D.J.M., Bolangir is
directed to proceed against the petitioner under section 304-A of
the Indian Penal Code.
It is made clear that the observation of this Court
that there are sufficient materials to proceed against the
petitioner under section 304-A of the Indian Penal Code is
confined to the stage of cognizance. The learned Trial Court is
however free to assess the evidence which would come on record
during trial and decide the guilt or otherwise of the petitioner of
such charge while pronouncing the judgment.
With the aforesaid observations and directions, the
criminal revision petition is disposed of.
...…………………………
S. K. Sahoo, J.
Orissa High Court, Cuttack
The 27th February, 2017/Sisir
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