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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 858 OF 2007

The State of Maharashtra

….Appellant

(Orig. Complainant)

V/s.

1. Dr. Mahesh Avinash Joshi

2. Dr. Avinash Vishnupant Joshi

Both R/at : 666, “T” Ward,

Kolhapur.

3. Dr. Sharad Vishnu Pendharkar

R/at 2508 ‘E’ Nagala Park,

Collector Office, Kolhapur.

….Respondents

(Orig. Accused)

----

Ms. P.N. Dabholkar, APP for State.

Mr. Siddharth Jagushte for Respondents/Accused.

----

CORAM : K.R.SHRIRAM, J.

DATED : 12^th MARCH, 2021.

ORAL JUDGMENT :

1.

This is an appeal impugning an order and judgment dated 22^nd

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

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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

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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

1 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

ignor