Medical professionals must exercise a high degree of care; negligence must be gross to warrant criminal liability under Section 304-A IPC.

JUDGMENT :

BHARATI DANGRE, J.

1. On 18/10/1994, the Metropolitan Magistrate, 15th Court, Mazgaon, Bombay, pronounced upon the complaint fled under Section 304-A of IPC, by one Nagindas Parekh against Dr. Anil Pinto, accusing him of rash and negligent act resulting in death of his son Prakash on 20/02/1984.

On conclusion of the trial and based on the evidence placed before him, the Magistrate, in the impugned Judgment, rendered a finding that the accused/Dr. Pinto has been culpably negligent and the rash and negligent act on his part, is manifest upon the sequence of events, leading to the death of a young and otherwise a healthy man, who but for the Procedure undertaken by Dr. Pinto, would be alive. The conclusion and inference is also drawn that the surgical process carried out by Dr. Pinto was not at all necessary.

While imposing the sentence on recording the finding of guilt under Section 304A, taking note of the immense services rendered by the accused, a medical professional and at the same time trying to balance the agony of the near relatives of the deceased because of the negligence and rashness attributed to him, a deterrent fine of Rs. 5,000/- was imposed as a penalty and in default it was directed that he shall undergo Simple Imprisonment for 10 days. Out of the fine amount, Rs. 4,500/- was directed to be allocated to the complainant, after appeal period was over.

2. Three proceedings are initiated on being aggrieved by the above Judgment.

Criminal Revision Application No. 96/1995 is fled by the complainant, who on his death is substituted by his legal heirs by order of the Court dated 27/08/2002, praying for imposition of deterrent sentence of imprisonment on the accused, by maintaining the conviction and also seeking levying of substantial amount of fine and amount of compensation, to be paid to the family of the deceased under Section 357 of the Cr.P.C.

Advocate S.D. Dharmadhikari, represent the applicants in the said Application and I have also permitted Ms. Anita Parekh, Applicant No. 2 in the Revision Application to advance her submissions as a special case since she is acquainted with the facts of the case and was examined as one of the witness in support of the case of the complainant.

Criminal Appeal No. 395/1995 is fled by the State under Section 377(1) of the Cr.P.C. for enhancement of the sentence imposed vide the impugned Judgment in Case No. 63/S/1994 and I have heard Mr. J.P. Yagnik, the learned APP for the State.

Criminal Appeal No. 123/1996 is fled by the Accused Dr. Pinto praying for setting aside the impugned Judgment as well as fine. However, it is informed that since the fine has already been deposited by the accused, he do not press his Appeal as regards this prayer though the finding of conviction is sought to be contested by Dr. Pinto through his counsel Advocate Mr. Siddharth Jagushte who also represent the accused in two other proceedings.

3. To appreciate rival claims, it is necessary to refer to the background of the impugned Judgment.

Prakash, son of Nagindas Parekh, was an unmarried man aged 30, having graduated from Bombay University and engaged in the business of automotive and tractor spare parts. For the discharge of his duty, he had a regular routine of leaving the house early in the morning at about 8.00 to 8.30 a.m. and returning by 8.00 p.m., though he used to have his lunch at home in the afternoon.

On 17.02.1984, at around 4.45 p.m. a telephone call was received at the Parekh’s residence, which was received by his daughter Rashmi (PW-2) from Dr. Pinto’s hospital Dadar, informing that Prakash was admitted in their hospital and operated for treatment of palms sweating and during operation one of his nerve was damaged, which resulted in complications and therefore someone from the family shall reach the hospital urgently.

Rashmi conveyed the message to her elder sister Anita (PW-3) working in Bank of India and since the complainant could not be reached, Anita reached Dr. Pinto’s Hospital loca