A recent judgement of Hon. Orissa High Court, while narrating the importance of Doctors in common man’s life and what Doctors should do to keep this faith, has covered almost all the angles of the most feared legal provision amongst Medicos…
In its 41 pages judgment, Hon. high Court has tried to cover all the angles of this provisions, while referring to Medical Literature
Dr. Subas Chandra Dash V/s. State of Orissa, CRIMINAL REVISION NO. 758 of 2013, decided on 27/02/2017.
The Judgment begins with famous quote by George Bernard Shaw – , “We have not lost faith, but we have transferred it from God to medical profession.”…
1. The Petitioner, a M.D. Gynecologist, owner of a Private Nursing Home, challenged the Issue Process order U/Sec.304 Part II of IPC, of Ld. S.D.J.M., Bolangir.
2. One Susanta Kumar Thakur filed a original complaint petition against the Petitioner holding the Petitioner Responsible for the death of his wife at the time of Delivery.
3. It was alleged by the Complainant that at the time of check-up, the Petitioner placed one tablet inside the vagina of the deceased as a result of which there was heavy vaginal watery discharge. Thereafter, she was given a Saline and an injection. After some time, used hand gloves and though forceps tried to pull out the baby from the womb of the deceased, as a result of which there was profuse bleeding due to rupture of uterus.
4. It was alleged that only normal delivery can be performed in the
Petitioner’s Nursing Home and not Cesarean Deliveries and the petitioner kept on giving assurance to the complainant for normal
5. It was also alleged that in such situation the deceased was referred to District Headquarters Hospital, Bolangir, where also she was not properly treated and ultimately the deceased as well as the baby in the unborn condition died.
6. Thereafter the Criminal Complaint was filed by the husband of the Deceased and the Investigating Officer (I.O.) during investigation seized various certificates and licenses of the Doctors. The I.O. concluded that, the Petitioner had no intention of causing death, but had full sufficient knowledge rupture of uterus caused due to pulling out the unborn baby forcefully by means of forceps was enough to accelerate the death and cause death in ordinary course of nature.
7. The Doctors denied all the charges of Negligence and averred that no case under section 304 Part-II of the Indian Penal Code was made out and no post mortem has been conducted on the dead body of the deceased to ascertain the truth of the accusation. The patient was denied to have been admitted as ani IPD patient.It was further contended that at the time of Admission, the deceased was diagnosed as a case of “Abruptio Placentae”
1. His Lordship Hon. S. K. Sahoo, J. referred to all the Evidence placed on record, various judgments of Hon. Apex Court and the Medical Literature.
2. As the OPD register showed that patient was diagnosed as G3P2 in labour with ‘antepartum haemorrhage’, his lordship has discussed the medial meaning of Term G3P2 and antepartum haemorrhage.
3. It also discussed about Accidental and Incidental antepartum haemorrhage and Placental abruption (abruptio placentae).
4. Then it turned to discuss the case of prosecution that even though only facility for normal delivery was available in the Nursing Home, the petitioner attempted a forceps delivery.
5. It was also observed the pros and cons of Forceps Delivery.
6.It was observed that prima facie materials are available on record to show that the petitioner knowingly kept the deceased in the Nursing Home with assurance to the complainant for normal delivery even though he was aware that it was a critical case and there are no such facilities in the Nursing Home to deal with such case.
7.The attempt of forceps delivery appears to have caused rupture of her uterus, as a result of which there was profuse bleeding and the condition of the deceased became serious. The forceps delivery was not appropriate in a birthing centre like the Nursing Home of the petitioner where a caesarean section could not have been done, if needed
8.The petitioner prima facie appears to have not exercised the skill with reasonable competence and did not adopt the practice acceptable to the medical profession of that day. As a doctor, it was the duty of the petitioner to explain the deceased or at least the complainant, chances of success and the risk of failure of the suggested treatment and inform them about the foreseeable risks and possible negative effects of the treatment keeping in mind the patient’s specific condition.
9. However while deciding the applicability of section 304 part-II, it was observed that culpable homicide’ as defined in section 299 of the Indian Penal Code, the death must be caused by doing an act: (a) with the intention of causing death, or (b) with the intention of causing such bodily injury as is likely to cause death, or (c) with the knowledge that the doer is likely by such act to cause death. It further discussed the Sec.304-A of IPC which carves out a specific offence where death is caused by
doing a rash or negligent act and that act does not amount to
10.While removing the Doctor from the clutches of Sec.304 Part-II, it was held that the knowledge cannot be attributed to petitioner that his act might cause such bodily injuries which may, in ordinary course of nature, be sufficient to cause death & thus, there are no prima facie materials for commission of an offence under section 304 Part II of the Indian Penal Code.
11. It relied upon the Landmark judgment of Apex Court in “Hit and Run case”, of Alister Anthony Pareira -Vrs.- State of Maharashtra reported in (2012) 2 Supreme Court Cases 648, it is held as follows:-
“47. Each case obviously has to be decided on its own facts. In a case where negligence or rashness is the cause of death and nothing more, Section 304-A may be attracted but where the rash or negligent act is preceded with the knowledge that such act is likely to cause death, Section 304 Part II IPC may be attracted and if such a rash and negligent act is preceded by real intention on the part of the wrongdoer to cause death, offence may be punishable under Section 302 IPC.”
12. However, there are sufficient materials to proceed against the petitioner under section 304-A of the Indian Penal Code as due to his rash or negligent acts, death of the deceased was caused which falls short of culpable homicide not amounting to murder.
To sum up, I may quote the following quote
” Laughing at our mistakes can lengthen our own life. Laughing at someone else’s can shorten it.” — Cullen Hightower
Few days back the Doctors from pune were initially held under Part-II of Sec.304 of IPC and created furore amongst the Medical Fraternity. On this background, it’s a worth reading judgment. Though its applicability as a precedent is limited, it certainly gives you enough of points to ponder over…
When a Doctor was saved from the clutches of Culpable Homicide not amounting to Murder
Adv. Rohit Erande