Judgment:
Surinder Singh, J.
1. The respondent-medical doctor was tried and acquitted for the offences punishable under Sections 337 and 304-A of the Indian Penal Code, which has been challenged in this appeal by the state.
2. In short, the facts of the case can be stated thus.
3. Shri Shakti Chahd Bhardwaj (deceased) was the Assistant Engineer in I and P.H. Department posted at Nichar. In the last week of July, 1997, he happened to visit his family in Housing Board Colony at Rakkar (Una), H.P. On 29th July, 1997, after taking dinner, he slept with his family in one of the rooms of his residence and his other two brothers, namely Kamlesh Kumar (PW-3) and Sudesh Kumar were sleeping in another room. During the intervening night of 29/30th July, 1997 at about around midnight Shri Shakti Chand complained of insect bite on his arm having three injuries, to his wife but there was neither any swelling nor bleeding. However, his other family members woke-up and as a matter of precaution, he was taken around 2 a.m. to the District Hospital, Una. The respondent doctor was on duty. He clinically found the case of insect bite on the fore arm and after giving injections of Avil and Decadron, Shakti Chand injured was kept under observation.
4. It is alleged that after the injection, the condition of Shakti Chand started deteriorating and he complained of giddiness arid pain in his entire body. PW-3 Kamlesh Kumar, his brother present there, contacted the respondent-doctor around 3 a.m., he was asleep: The respondent told him repeatedly that the patient was being looked after by him. Although respondent came to the patient, he was having unbearable pain but left him there without any further treatment. Thereafter Kamlesh Kumar went to the nurse on duty, and requested her to give some injection for relieving him From severe pain. The nurse gave some injection but it brought no respite to the patient. Thereafter Shakti Chattd complained of breathing problem. Again Kamlesh Kumar approached the respondent and informed him about the condition of patient. On this, respondent-doctor got annoyed and scolded him that he had been bothering him throughout the night and he should not cause any further trouble to him. It is alleged that respondent used indecent language. Kamlesh Kumar asked him whether they should remove their patient to some other hospital but respondent-told that he was not having any serious problem and bolted the door without attending the patient.
5. PW-1 Sangita Bhardwaj, wife of deceased Shakti Chand reached the hospital around 6 a.m. but despite her repeated requests, respondent did not attend the patient but in turn misbehaved with her. The condition of the patient further deteriorated. He was loosing control over his tongue. Kamlesh Kumar felt himself helpless arid went to contact his other relatives. When he again came to the hospital, Sangita Bhardwaj, his sister-in-law informed him that some injection was administered to the patient and his pulse rate had become feeble. Again, Kamlesh Kumar went to the respondent-doctor but, he insulted and scolded him and refused to attend the patient. At about 8 a.m. his brother Shakti Chand breathed his last because of the negligence by the respondent. Even, the hospital authorities refused to conduct the post-mortem unless the matter is reported to the police.
6. The dead body of Shakti Chand was handed over to his relatives. The last rites were performed by the family members of the deceased and according to Kamlesh Kumar, after having become free of obsequies, on 5th August, 1997, a complaint, Ext PW-3/A was Made to the Superintendent of the Police which was forwarded to SHO, una for enquiry, on the basis of which FIR under Sections 336 and 304-A of the Indian Penal code was registered.
7. During the investigation of this case, police took into possession the Duty Chart of respondent-doctor (Ext. PW-5/A) and treatment summary of the deceased (Ext. PW-6/A) and also the copy of the inquiry report prepared by the Chief Medical Officer PW-10 doctor D.N. Chadha.
8. On completing the investigation, police found it a case of negligence against the respondent as such the challan was presented in the Court for his trial.
9. The respondent was charge sheeted for the aforesaid offences, to which he pleaded not guilty and claimed trial.
10. To prove its case, prosecution examined its witnesses and respondent was also examined under Section 313 of the Code of Criminal Procedure. His case was denial simpliciter. According to him, deceased was given proper treatment and he was falsely implicated in the case.
11. No evidence in defence was led.
12. At the end of the trial, respondent was acquitted and his acquittal has been assailed in this appeal.
13. Shri Vikas Rathore learned Deputy Advocate General vehemently argued that the statement of the eye witnesses were not properly appreciated by the learned trial Court and. the treatment summary of the deceased reveals that it was a case of snake bite and proper treatment was not given by the respondent.
14. In response, Shri N.K. Thakur has supported the impugned judgment of acquittal.
15. In Dr. Suresh Gupta v. Govt. of NCT of Delhi and Anr. : (2004) 6 SCC 422 : 2004 Cri LJ 3870, the Apex Court held that for fixing criminal liability of 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. 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 man 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 result 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.
16. The general principles on the subject of medical negligence have been lucidly and elaborately explained in the three Judges Bench decision in Jacob Mathew v. State of Punjab : (2005) 6 SCC 1 : 2005 Cri LJ 3710, wherein the Supreme Court inter alia, drew up the following conclusions:
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.
The word 'gross' has not been used in Section 304-A, I.P.C., 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 negligence act' as occurring in Section 304-A, I.P.C. has to be read as qualified by the word 'grossly'.
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.
17. In view of the principles Laid down in the said judgment the Supreme Court however ex abundanti cautela only agreed with the principles of law Laid down in Dr. Suresh Gupta's case : (2004 Cri LJ 3870)(supra) and reaffirmed the same.
18. The principles of law Laid down by the above judgments of the Supreme Court were further followed by the Supreme Court in Martin F.D. Sauza v. Mohd. Ishfaq : (2009) 1 SCC (Cri) 958 : AIR 2009 SC 2049.
19. Thus in older to hold the existence of criminal rashness or criminal negligence it shall have to be found out that the rashness was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely imminent. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequences. The negligence is to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
20. In the case in hand, applying the above principle of law Laid down by the Apex Court, there is no iota of evidence to fasten the criminal liability for the offences charged against the respondent because there is no such evidence adduced by the prosecution on the above lines and further more PW-10 Dr. D.N. Chadha, the then Chief Medical Officer examined before the learned trial Court has specifically testified that there was no negligence of respondent-doctor and the deceased Shakti Chand had died in the natural course of event. The Cause of death, according to him, was either insect bite or could be a snake bite. The treatment summery Ext. PW-6/A reveals that the deceased was checked up and treated by the respondent-doctor from time to time. But it failed to yield any result and ultimately he expired at about 8.30 a.m. on the same day. The record also does not reveal that at any point of time, the complainant party had requested for the postmortem of the deceased. If they had expected any failure, they could have requested for the autopsy to ascertain cause of death. Although the cause of death is clearly mentioned in the treatment summary which was attributed to the cardio pulmonary respiratory failure and also the possibility of dying of deceased on account of insect bite could be direct and proximate result of death of the deceased despite the efforts put by the respondent to save him, which fact stands unrebutted on record. Further, as stated above, it is also apparent that the doctor on duty had attended the patient from time to time, the efforts were made by the respondent-doctor to treat him and the requisite doses of the medicines were administered which, in his wisdom were required at the relevant time. The anxiety of the brother of the deceased Kamlesh kumar and PW-1 Sangita Bhardwaj to complain against the respondent is understandable because the brother of PW-3 and the husband of PW-1 had died despite giving him the treatment.
21. The allegations of not attending the patient by the doctor, when he was contacted by the aforesaid witnesses and the alleged misbehaviour also do not fall within the purview of offence charged, to hold him criminally liable.
22. In these circumstances, prosecution could not prove the rash or negligent act by the respondent-doctor within the ambit of the exposition of law propounded by the Apex Court and thus the findings of acquittal arrived at by the learned trial Court cannot be interfered with as such the appeal lacks merit and is accordingly dismissed.
23. The respondent is hereby discharged of the bail bonds entered upon by him at any stage during the proceedings of this case.
24. Send down the records.