The judgment emphasizes the high standard of negligence required to fix criminal liability on a doctor and the principles for appellate courts to consider when hearing an appeal against acquittal.

JUDGMENT

K R Shriram, J. - This is an appeal impugning an order and judgment dated 22nd February, 2005 passed by the Chief Judicial Magistrate, Kolhapur acquitting the three respondents who are Medical Practitioners (hereinafter referred as accused) of offence punishable under Section 304-A (Causing death by negligence) r/w Section 34 of the Indian Penal Code.

2. A 14 year old girl Aparna Balasaheb Killedar was admitted in the clinic belonging to Accused No.1 on 30/04/2001 to get tonsillectomy performed on her. The operation was performed on 01/05/2001. It is prosecution's case that due to gross negligence on the part of the doctors who were involved in the surgery, profuse bleeding was caused and Aparna died. Accused No.1 was assisting the main surgeon Accused No.2 and Accused No.3 was anaesthesiologist. The complaint was lodged and offence came to be registered. Three doctors accused were arrested and released on bail. Charges were framed and accused pleaded not guilty and claimed to be tried.

3. To drive home the charge, prosecution led evidence of 9 witnesses namely Balasaheb Shankar Killedar, Complainant - Father of deceased as P.W. 1 ; Shobha Balaso Killedar, Mother of deceased as P.W.2 ; Jayashree Shrikant Kadam, Panch/Relative of deceased as P.W. 3 ; Anil Shripati Patil, Relative of deceased as P.W. 4, Dr. Sambhaji Kallappa Parit Jadhav, Doctor who referred victim to accused as P.W. 5, Dr. Manisha Prashant Patil, Medical Officer, C.P.R. Hospital who conducted postmortem of deceased as P.W. 6, Hemchandra Annasaheb Kshirsagar, Investigating Officer as P.W. 7, Dr.Jayant Shamrao Patil, Medical Officer of C.P.R. Hospital as P.W. 8 and Saheblal Bandu Bandar, Police Officer who conducted Inquest Panchanama as P.W. 9.

4. Prosecution primarily relied on the evidence of Dr. Manisha Patil - P.W. 6 and Dr. Jayant Patil - P.W.8 and of course complainant P.W. 1. After considering the evidence, Trial Court acquitted the three accused and that order of acquittal is what is impugned in this appeal. The Apex Court in Dr. Suresh Gupta V/s. Govt. of NCT of Delhi and Another, (2004) 6 SCC 422 has considered as to how high the standard of negligence is required to be proved for fixing criminal liability on a doctor or surgeon and it would be useful to reproduced paragraph nos. 20, 21, 22, 23, 25 and 26 of the said judgment. It reads as under :

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. Vs. 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 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 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 risk of landing