K. Sadasivan, J.@mdashThis appeal is by the State against acquittal entered by the lower appellate Court. The Respondent, Devaki Amma was a midwife in the Women and Children''s Hospital, Thycaud, Trivandrum. She was charged with criminal negligence for causing the death of a pregnant woman, Aisha Beevi by name, who was a patient in the hospital, by administering carbolic acid to her instead of carbonative mixture. She denied the charge and stated that carbolic acid was not administered by her. Further it was stated by her that besides herself, there was at the time another midwife who was also incharge of the same ward and over and above that there were two nurse-trainees also working there ; implying thereby that the carbolic acid might possibly have been administered by some one among them. The trial Court repelling the plea of the accused, convicted her u/s 304-A Indian Penal Code and sentenced her to a fine of Rs. 200/-. In appeal the learned Addl. Sessions Judge of Trivandrum agreed with the learned trial Magistrate in his finding that carbolic acid was administered by the accused herself and not by any other midwife or nurse ; but the accused was acquitted by the learned appellate Judge on the ground that no criminal negligence has been established so as to warrant a conviction u/s 304-A Indian Penal Code.
2. I think the view of the learned appellate Judge is correct in the circumstances of the case. Learned Counsel for the Respondent wanted this Court to reconsider the finding of fact entered by the Courts below, viz., that carbolic acid was, in fact, administered by the accused and none else. I do not think the finding calls for re-consideration. The fact the deceased was an in-patient in the labour ward and that the accused was the duty mid-wife in charge of the labour ward at the time cannot be denied and has been well proved by the evidence in the case. Immediately after administering the medicine, the accused ran up to Pw5, RMO, and confessed to her that by mistake carbolic acid was administered to the patient. The same confession was made by her to Pw6, the Superintendent also. The courts below have accepted this evidence and found that carbolic acid was, in fact, administered by the accused to the deceased and I see no reason to disturb that finding.
3. In assessing the penal responsibility of the accused in the case, it has to be borne in mind that a very high degree of negligence must be found; negligence which must amount to recklessness or utter indifference to consequences and not merely negligence of tort. Beg, J., of Allahabad High Court observed in Siva Ram v. State that:
There are degrees of negligence and rashness, and, in order to amount to criminal rashness or criminal negligence, one must find that the rashness has been of such a degree as to amount to taking hazard knowingly that the hazard was of such a degree that injury was most likely to be occasioned thereby. The criminality lies in running the risk of doing such an act with recklessness and indifference to the consequences. Criminal negligence is a gross and culpable neglect, that is to say, a failure to exercise that care and that precaution which, having regard to the circumstances, it was the imperative duty of the individual to take.
About the criminal responsibility of doctors in dealing with their patients, the Privy Council observed in John Oni Akerela v. The King that:
A doctor is not criminally responsible for a patient''s death unless his negligence or incompetence passed beyond a mere matter of compensation and showed such disregard for life and safety as to amount to a crime against the State. The degree of negligence required is that it should be gross, and neither a jury nor a court can transform negligence of a lesser degree into gross negligence merely by giving it that application. Care should be taken before imputing criminal negligence to a professional man acting in the course of his profession.
In that case a doctor was charged with criminal negligence. In order to show that a particular injection given by the doctor was too strong and to rebut the presumption that the death of a particular boy was due to an exceptional reaction to that injection in his case, the prosecution tendered evidence of the symptoms, illness and death of nine other children. The Court held that:
The evidence was admissible not as evidence of a course of conduct of the carelessness or negligent conduct of the doctor in injecting too much of a proper mixture but as evidence of the reaction to children who were similarly injected at the same time and place so as to prove that too strong a preparation was used for the injections.
In the present case the position is slightly different and the negligence attributed to the accused, if at all is of a lesser degree and it is difficult to pin her with penal responsibility so that the act might amount to a crime. Dealing with the basis of such criminal actions Russell has observed as follows in his treatise on Criminal Law:
If A has caused the death of B by alleged negligence, then in order to establish civil liability, the Plaintiff must prove (in addition to pecuniary loss caused by the death) that A owed a duty to B to take care, that that duty was not discharged, and that the default caused the death of B. To convict A of manslaughter the prosecution must prove the three things above mentioned and must satisfy the jury in addition, that A''s negligence amounted to a crime. In the civil action, if it is proved that A fell short of the standard of reasonable care required by law, it matters not how far he fell short of that standard. The extent of his liability depends not on the degree of negligence, but on the amount of damage done. In the criminal Court, on the contrary, the amount and degree of negligence are the determining questions. There must be mens rea. In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, judges have used many epithets such as "culpable" "criminal", "gross" "wicked", "clear", "complete". But, whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment.
Dealing with the extent of criminal liability of a medical man who by mistake administers the wrong medicine, the author would further observe:
On an indictment for manslaughter against a medical man by administering poison in mistake for another drug the prosecution must show that the poison got into the mixture in consequence, of his gross and culpable negligence, and it is not sufficient to show merely that the prisoner, who dispensed his own drugs, supplied a mixture which contained a large quantity of poison". (Vide Russel on Crime, 9th Edn. R. E. R 375 and 376).
4. In the instant case it has come in the evidence that carbolic acid could never have come in the particular shelf, where it was found that day. Poisonous drugs like carbolic acid are kept in a separate shelf, normally under the lock and key of the RMO. So much of such drugs as is issued to the ward will be in the custody of the sister in charge of the ward and the sister in charge of the ward at the relevant time was one sister Joan. These facts have been sworn to by the RMO. herself. The Superintendent of the hospital Pw5, has also endorsed this statement. She has stated further that amidst the usual drugs which are in daily use, no poisonous drugs would be placed, and tint is the practice in the hospital. To quote her own words:- (Portion in vernacular omitted)
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It has also come in the evidence that corbonative mixture and carbolic acid were both kept in similar bottles with the same colour and size and this circumstance would lend weight to the accused''s statement that it was by mistake that carbolic acid happened to be administered to the patient. Immediately on realising the mistake she ran up to the RMO and confessed it. Simple lack of care such as one of which it might be said she was guilty, will constitute if at all, only civil liability and that is not sufficient to charge her with criminal liability entailing punishment. In order to attribute recklessness to her, the prosecution must prove that she was indifferent to risk involved in the act. Before the conviction can be had u/s 304-A IPC, the negligence or rashness, as already observed must be of a very high degree amounting to recklessness or utter indifference to consequences and not merely negligence in civil law. That amount of negligence or rashness is absent in the present case, and in this view, the order of acquittal entered by the learned appellate Judge is correct and in confirmation of which, this appeal is dismissed.
5. The rule issued will stand discharged.
