Full Judgment
Kulkarni, J.
1. The accused by this petition requests for quashing theproceedings in C.C. No. 832 of 1987 pending on the file of the JudicialMagistrate First Class, Puttur.
2. The material facts leading to the present case are as under:-
The deceased Vasanti was the wife of the complainant HarischandraC.W. 1 who is working as P.S.I. S.D. Unit, Mangalore. The deceasedVasanti was married to the complainant Harischandra C.W.1 on23-4-1984. The deceased was about 21 years old when she was married tothe complainant Harischandra. She was pregnant by about 8 months by28-12-1985. On 12-1-1986 the deceased's mother Mrs. Leelavathi and thedeceased's father Purushothama Achar went to the complainant and tookthe deceased Vasanti to their house as it was her first delivery. Thecomplainant Harischandra was getting his wife Vasanti examined at thehands of Dr. H.S. Somasekhar Rao of Vasudev Clinic of Mulki ever sinceshe was carrying five months till she was taken by her parents on12-1-1986. The said Dr. Somasekhar Rao, according to Harischandra, wasopining that everything was alright. Even on 25-12-1985 Harischandragot his wife examined at the hands of a Gynaecologist Smt. Meera R.Kamath of Mulki. According to him, Dr. Smt. Meera R. Kamath told himthat everything was alright. Even on 14-1-1986, the parents of thedeceased had got her examined at the hands of Dr. K. GopalakrishnaBhat of Uppinangadi who, in turn, had told them to take her toBonanthay Krishna Bhat Memorial Hospital at Puttur. According to him,Dr.Vasanti attached to Bonanthay Krishna Bhat Memorial Hospital, onexamining the deceased had told that every thing was alright with her.The said doctor had prescribed some medicines to the deceased. On26-1-1986 at about 8-OOp.m. Vasanthi was taken by her parents to thesaid Nursing Home at Puttur as she started getting pains. Dr. Vasantiexamined her and informed her parents that she would not haveimmediate delivery. She asked them to bring her the next day morning.Accordingly on 27-1-1986 at about 5-30 a.m. she was taken by herparents to the said Nursing Home. She was admitted to the said NursingHome at about 6-00 a.m. on 27-1-1986. Dr.Vasanti was told about thesaid admission by Attender Shoba through phone. She was so admitted inthe Nursing Home as per the words of the accused Dr. Krishna Prasadand Dr.Vasanti. At about 9-00 a.m. on that day, Dr.Vasanti and herbrother the accused Dr. Krishna Prasad went to the Nursing Home andexamined her and found her B.P. reading as 120/86. Her feet wereslightly swollen. The child had fully developed. As the pelvis wasvery narrow, it was not possible for the child to move down throughthe pelvis, and the child was floating just above the pelvis itself.The neck of the uterus had become soft and had widened by about 2fingers. It was not possible to push down the head of the childthrough the pelvis as the pelvis passage was very narrow. | But,however, Dr.Vasanti and her brother the accused wanted to wait andfind out whether she would have a natural delivery. At about 10-00a.m. on that day, chloromysetin injection of 2c.c. was administered tothe deceased Vasanti. Again she was examined by Dr.Vasanti at about1-00 p.m. and she found that Vasanti was getting labour pains once infour minutes and that pain persisted for about 45 seconds to oneminute. She found that the head of the child was not still going intothe pelvis passage. Vasanti made some attempts to push the head of thechild into the pelvis passage but in vain. Hence she found thatVasanti would not have a natural delivery at all. She consulted theaccused Dr.Krishna Prasad also in the matter. She and the accusedDr.Krishna Prasad came to the conclusion that in order to save thechild and the deceased Vasanti, there was no other alternative but tocarry out caesarean operation. The accused and Dr.Vasanti consultedthe parents of the deceased Vasanti and told them that Vasanti wouldnot have a natural delivery at all and that the only alternative tosave the child and the mother was to carry out the caesareanoperation. The parents of the deceased Vasanti gave consent to theoperation. They also consulted Vasanti and she also gave her consentto the operation and they noted the consent of the deceased Vasantiand her parents in the case sheet. By about 1-30 p.m. the deceased wasgiven one ample of Atropine injection in the labour room. Theoperation theatre was got ready. By about 2-30 p.m. Vasanti was takenfrom the labour room to the operation theatre. Dr.Vasanti and theaccused got themselves ready to carry out the operation. At that time,the Attenders Lakshmi, Shoba, Yashoda and Shankari were also presentin the hospital. Dr. Malati, wife of the accused, was also present inthe operation room. Dextrotyle M. drips were being given to thedeceased by putting the needle in the vein of the left hand. By about3-00 p.m. they wanted to carry out the operation by giving localAnaesthesia as they thought that general Anaesthesia would affect thechild. Accordingly the accused gave Spinal Xylocaine of 1.2 c.c. tothe spinal cord in order to give local Anaesthesia. Within two minutesafter giving the said injection, the blood pressure began to fall downsuddenly. As the blood pressure began to fall down suddenly, theaccused hastened the drips and 1 c.c. of Betnesol injection was givenby Dr.Malati to the deceased. Immediately thereafter 1/4 c.c. ofMephentine injection was given to Vasanti. Immediately oxygen was alsogiven. With all the efforts, the blood pressure did not come up atall. Again one more Intravenous Betnesol injection of 2 c.c. wasgiven. With all the efforts, the blood pressure did not come up. Theaccused examined the deceased and found that her heart had stoppedbeating. Immediately he gave 1 c.c. of Adrenaline injection to theheart. It was of no use. The accused carried out external cardiacmassage for nearly 10 minutes and that was also of no use. Thedeceased Vasanti was found dead by then. The accused and Dr.Vasanticame out of the operation theatre and told the parents of the deceasedabout the death of Vasanti on the operation theatre. Thereafter thedeceased's husband-complainant Harischandra was informed about thedeath of Vasanti. Thereafter the complainant-husband gave anapplication dated 8-3-1986 to his superiors alleging rashness andnegligence against the accused. A report was called for by thesuperior police officers. Ultimately a case was registered against theaccused on 14-3-1986 for the offence under Section 304A I.P.C.
3. The police after registering the case recorded the statements ofC.Ws. 1 to 16 and drew up some mahazars and ultimately laid a chargesheet against the accused for the offence under Section 304AI.P.C.
4. The accused was served with the summons in the said case. He hascome up with the present revision under Section 482 Cr.P.C. forquashing the proceedings.
5. The learned Government Pleader Shri Jadhav submitted that theaccused was criminally negligent in not giving a test dose to thepatient and that the accused was not an Anaesthetic expert and hencehe ought not to have given the injection in question. On the otherhand, the learned Counsel Shri Chouta for the petitioner submittedthat what all best could be done under the circumstances had been doneby the accused and it was only a case of misfortune or ill-luck.According to Shri Chouta, even if all the materials collected by theinvestigating agency are taken into consideration, the material onrecord was not even remotely sufficient even to raise a suspicion orto prove criminal rashness or negligence against the accused.
6. Section 304A I.P.C. reads as :-
'Whoever causes the death of any person by doing anyrash or negligent act not amounting to culpable homicide, shall bepunished with imprisonment of either description for a term which mayextend to two years, or with fine, or with both.'
It is unfortunate that the dead body of Vasanti was not subjectedto post mortem examination and that the organs of the body were notsubjected to histo-pathological examination at all. That she died inthe operation theatre, cannot be disputed at all. What is the exactcause of death would have been very well found out if the post mortemexamination over the dead body was conducted or if histo-pathologicalexamination of organs of her body had been conducted. Whether she dieddue to the administration of the injection known as Spinal Xylocaineor whether she died due to some other reasons, cannot be made out atthis stage at all.
7. The materials on record go to show that the pelvis passage wasextremely narrow and the head of the child was not coming down throughthat passage and the child was floating over the pelvis region itself.Whether she died on account of the shock caused to her by the childnot coming into the pelvis region or on account of some other reasonor on account of the administration of the said Spinal Xylocaineinjection, cannot be made out at this stage at all. The necessarymaterial like the post mortem examination and the histo-pathologicalexamination which ought to have been resorted to by the investigatingagency, has not been collected in this case in order to show as towhat was the real cause of death of the deceased. It is no doubt truethat immediately after the administration of the Spinal Xylocaineinjection, the blood pressure started to fall down and she also diedwithin a few minutes thereafter. Therefore one of the reasons for thedeath, according to the prosecution, was the administration of theinjection. But the possibility of other causes being responsible forher death, cannot be ruled out at all. Thus, the investigating agencyin this case, in my opinion, has failed to collect sufficient materialto show as to what was the exact cause of death.
8. The materials i.e. the various statements of the complainantHarischandra and the deceased's parents Purushothama Acharya andLeelavati, C.Ws.2 and 3, and the Attender Shoba C.W.4 and anotherAttender Lakshmi C.W.5 and another Attender Shankari and anotherAttender Yashoda and Dr.Vasanti and Dr.Malati and others would show atthe most that the deceased was admitted for delivery in the NursingHome of the accused at about 5-30 a.m. or 6-00 a.m. on 27-1-1986 andthat Atropine injection was given and thereafter Dextrotyle M. dripswere given and thereafter in order to have local Anaesthesia SpinalXylocaine was given and that when the blood pressure began to fallsuddenly, drips were accelerated and 1 c.c. Betnesol injection wasgiven and thereafter 1/4 c.c. Mephentine injection was given andthereafter again Betnesol injection of 2 c.c. was administered andthereafter in order to give some impetus to the heart, 1 c.c. ofAdrenaline injection was also given and even external massage wascarried out. All these attempts made by the accused and his colleaguesDr.Malati and Dr.Vasanti proved ineffective.
9. It is no doubt unfortunate that the young deceased Vasanti whowas hardly 21 years or 22 years old and who was carrying for the firsttime, died in the operation theatre The death on the operation tableby itself is not sufficient to prove rashness or negligence againstthe accused person. What appears from the statements of thesewitnesses is that the deceased might have died on account ofadministration of Spinal Xylocaine injection. That Spinal Xylocaineinjection is given in order to bring about local Anaesthesia, is notdisputed. It is not disputed that the administration of generalAnaesthesia would have proved more harmful to the patient and thechild. Therefore it appears that the best Anaesthesia that could beadministered under the circumstances was the local Anaesthesia byadministering the Spinal Xylocaine.
10. The accused as can be seen from the charge-sheet itselfpossesses M.B.B.S., and F.R.C.S. Degrees and certificates. Thematerial on record goes to show that he has been practising Surgerysince the last 20 to 25 years. Therefore it appears that he is anexperienced Surgeon and also an expert in Surgery. He has been runningthe Nursing Home in question ever since 1972. Therefore it cannot besaid that the accused was a novice or an inexperienced Surgeon.Dr.Vasanti is M.B.B.S. D.G.O. Dr.Malati has passed M.B.B.S.Examination from Mysore University. Both these lady doctors also havebeen practising in that Nursing Home since the last so many years.Dr.Vasanti has got a Diploma in Gynaecology and Obstetrics. She isalso an experienced Gynecologist and Obstetrician. Therefore it is nota case of treatment given by inexperienced and novice doctors.
11. As already stated above, the death in all probability might bedue to administration of Spinal Xylocaine injection which was given inorder to bring about local Anaesthesia.
12. Rashness and negligence are not the same things. Negligencecannot be construed to mean rashness. There are different degrees ofnegligence and rashness. In order to amount to criminal rashness orcriminal negligence one must find out that the rashness has been ofsuch a degree as to amount to taking a hazard knowing that the hazardwas of such a degree that injury was most likely to be occasionedthereby. The criminality lies in running the risk or doing such an actwith recklessness and indifference to the consequences.
13. The learned Authors Shri Ratanlal and Dhirajlal in Law ofCrimes, 22nd Edition, have stated on page 810 as :-
'The question whether the accused's conduct amounted toculpable rashness or negligence depends directly on the question as towhat is the amount of care and circumspection which a prudent andreasonable man would consider it to be sufficient considering all thecircumstances of the case. Moreover, in applying the above criterionit is necessary to avoid being influenced by the prejudice arising outof the loss of a life which is so dominant a factor in accident cases.The distinction between the negligence which is sufficient ground fora civil action and the higher degree which is necessary in criminalproceedings is sharply insisted on in several cases. In criminalcases, the amount and degree of negligence are the determiningfactors. There must be mens rea in the criminal negligence also. Inorder to establish criminal liability the facts must be such that thenegligence of the accused sent the case beyond a mere matter ofcompensation and showed such disregard for the life and safety ofothers as to amount to a crime. Simple lack of care such as willconstitute civil liability is not enough.'
The learned authors Shri Ratanlal and Dhirajlal in Law of Crimes,22nd Edition, stated in clear and unambiguous terms on page 812 as:-
'The duty of a medical man, who undertakes thetreatment of a patient, is to use a fair and reasonable standard ofcare and competence. Before a medical man can be held criminallyresponsible for the death of his patient, the prosecution must proveall matters necessary to establish civil liability, except pecuniaryloss, and in addition must prove negligence or incompetence on hispart which went beyond a mere matter of compensation between citizensand showed such disregard for the life and safety of others as toamount to a crime against the State. Where a doctor prepared aninjection by dissolving some powder in water which he gave tofifty-seven children of whom five died and others were made ill, itwas held that negligence, to be criminal, must be gross and that theonly negligence on which reliance could be placed being the single actof dissolving the powder in water, a criminal degree of negligence hadnot been proved merely because too strong a mixture had once beendispensed and a number of children made gravely ill.'
The learned author Shri Nelson in his l.P.C. 7th Edition (1983edition) has stated on page 1144 as :-
'Culpable negligence is acting without theconsciousness that the illegal and mischievous effect will follow, butin the circumstances which show that the actor has not exercised thecaution, incumbent upon him, and that if he had, he would have had theconsciousness. The Impute ability arises from the neglect of the civicduty of circumspection. It is manifest that personal injury,consciously and intentionally caused, cannot fall within either ofthese categories which are wholly inapplicable to the case of an actor series of acts, themselves intended, which are the direct producersof death. Following this, in the well-known case of EMPRESS OF INDIAv. IDU BEG (I.L.R. 3 All 776), Straight, J. observed :'Criminal rashness is hazarding a dangerous or wanton, act with theknowledge that it is so and that it may cause injury, but withoutintention to cause injury or without knowledge that it will probablybe caused. The criminality lies in running the risk of doing such anact with recklessness or indifference as to the consequences. Criminalnegligence is the gross and culpable neglect or failure to exercisethat reasonable and proper care and precaution to guard against injuryeither to the public generally, or to an individual in particular,which, having regard to all the circumstances, out of which the chargehas arisen, it was the imperative duty of the accused person to haveadopted.'
The learned Author has further stated on the same page as :-
'When one does an act with utter indifference to theconsequences, of which the doer may be conscious and which, he knows,may not take place, one is said to be rash while criminal negligenceis neglect to take that precaution which a reasonable and prudentperson is expected to take under the circumstances obtaining in agiven case.'
The learned author has further stated on page 1145 as :-
'Negligence is the failure to take reasonable care andthe degree of the reasonable care is not to be measured by anyabstract standard. Negligence does not mean absolute carelessness orindifference, but want of such a degree of care as is required inparticular circumstances.'
14. In Dr.Sir Hari Singh Gour's Penal Law of India, 10th edition,it is stated on page 2723 as :-
'This Section, then, does not apply to cases in whichthere has been a voluntary commission of an offence against theperson. If a man intentionally commits such an offence, andconsequences beyond his immediate purpose result, it is for the Courtto determine how far he can be held to have the knowledge that he waslikely, by such act, to cause the actual result. If such knowledge canbe imputed, the result cannot be attributed to mere rashness : if itcannot be imputed, still the wilful offence does not take thecharacter of rashness, because its consequences have beenunforeseen.'
15. In this case, as already stated above, the accused and his twocolleagues Dr.Malati and Dr.Vasanti have treated the patient first byadministering Atropine injection and thereafter they gave DextrotyleM. drips and thereafter only they gave Spinal Xylocaine injection inorder to bring about local Anaesthesia. What best could be done by anyreasonable doctor was done by them from the very beginning itself. Theadministration of Atropine injection and the administration ofDextrotyle M. drips and Betnesol injection as precautionary measurescan only be attributed to the fact that the doctors wanted to take andtook all precautionary steps to save the child and the mother. Theadministration of 1.2 c.c. of Spinal Xylocaine cannot be considered tobe an excessive dose at all. It is the most minimum that is requiredto be given in order to bring about local Anaesthesia. When after theadministration of Spinal Xylocaine the blood pressure began to fallthe drips were accelerated. Thereafter 1 c.c. of Betnesol injectionwas given. Thereafter 1/4 c.c. of Mephentine injection was given.Thereafter even oxygen was administered. Thereafter again 2 c.c. ofBetnesol injection was given. When the blood pressure did not pick upat all, the accused doctor administered Adrenaline of 1 c.c. to theheart in order to activate the heart. Even that proved ineffective. Heeven did external cardiac massage for nearly 10 minutes. All the saidtreatment given to the deceased by the accused and his colleagueswould go to show what best could be done even by any eminent expert inour Country was done by the accused in this case. It might beunfortunate that the patient died. It cannot be said that the accuseddid not take proper, precautionary and reasonable steps at all. Theconsequences were unforeseen and were unpredictable. These are all theinjections which would be given by any doctor and all of them weregiven to her. Therefore though the consequences are unfortunate, theyare still unforeseen.
16. The accused has undertaken a fair and reasonable standard ofcare and competence. It is not the case of the prosecution that theaccused was an incompetent Surgeon and that the treatment given inthis case to the deceased would not have been given by a competentdoctor. Therefore the material on record would clearly go to show thatthe accused and his two colleagues did their best in the matter tosave the child and the mother and gave the best treatment possibleunder the circumstances. But unfortunately for them and unfortunalityfor the deceased, the consequences which were unforeseen and whichcould not be predicted, brought about the unfortunate death. Oneshould not be carried away by the unfortunate death. What is to beseen in the case is whether proper, fair and reasonable treatment wasgiven by the accused and his colleagues to the deceased. If proper,reasonable and fair treatment is given and if still the death hasensued, the death cannot be attributed to any imaginary rashness ornegligence on the part of the accused. It is not the prosecution casethat the treatment given by the accused and his colleagues is not theone which any reasonable Surgeon or doctor would have given in suchcases. It is not even the prosecution case that any other bettertreatment could have been given. Therefore, under these circumstances,the materials on record collected by the police would themselves go toshow that the accused and his two colleagues gave a fair, proper,reasonable and competent treatment to the deceased in their anxiety tosave the child and the mother. But the consequence was disastrous,unforeseen and unpredictable and for that unforeseen and unpredictabledeath the accused cannot be accused of being rash or negligent in thetreatment. Therefore, under these circumstances, the material onrecord does not even remotely indicate that the accused did anythingrashly or negligently so as to endanger the life of the deceasedVasanti. But, on the other hand, the materials on record go to showthat the accused and his two colleagues gave the most proper, fair,competent and reasonable treatment and gave the treatment which couldbe given by any competent person. The death of the deceased cannot besaid to be the result of any rash or negligent act on the part of theaccused doctor and his colleagues. Therefore the materials on recorddo not even remotely indicate the commission of an offence underSection 304A I.P.C.
17. The learned Government Pleader urged that a test dose ought tohave been given by the doctor. The test doses are resorted to by thedoctors when certain medicines just like pencillin and sulpha mightbring about shock and allergy to the patients. It is a common localAnaesthesia known as Spinal Xylocaine that is normally given to allthe patients when carrying out surgery in order to bring about localAnaesthesia. Shocks by the administration of such doses are one inlakh or so. Merely because one in a lakh cases bring about disastrousresults, it does not mean that the non-giving of the test dose was anindication of rashness or negligence. If the deceased was allergic toSpinal Xylocaine, the administration of even a test dose would nothave made any difference in the situation. A negative result evenafter a test dose does not ensure satisfactorily that the disastrousconsequences would not have ultimately followed. The learnedGovernment Pleader Shri Jadhav submitted that the accused was atliberty to urge all these points before the Magistrate by filing anapplication under Section 258 Cr.P.C. It would be a sheer waste ofpublic time and energy. What can be done at the earliest stage neednot be postponed by saying that the same point can be urged before theMagistrate. Therefore, under these circumstances, the said argument isrejected.
18. The learned Government Pleader Shri Jadhav urged that neitherthe accused nor his two colleagues were competent Anaesthetists. Theaccused is M.B.B.S. and F.R.C.S. Dr.Vasanti is M.B.B.S, D.G.O.Dr.Malati is M.B.B.S. It is no doubt true that nowadays Diplomas andPost Graduate degrees in Anaesthesia are open to the candidates. Butit does not mean that the persons holding Degrees like M.B.B.S.,F.R.C.S., D.G.O., are not qualified to administer Anaesthesia.Therefore the said argument is also rejected.
19. Thus, in the result, the petition is allowed. All theproceedings initiated by the police in this case and the proceedingsin C.C. No. 832 of 1987 pending on the file of the Judicial MagistrateFirst Class, Puttur, are quashed.