Sadhan Kumar Gupta, J.@mdashThis appeal has been preferred against the judgment and order dated March 27, 1998 passed by the Ld. Judge, Special Court (Essential Commodities Act), - Cum-Additional Sessions Judge, Alipore in Criminal Appeal No. 53 of 1997, wherein the Id. Judge was pleased to acquit the opposite party No. 1 of all the charges thereby setting aside the judgment and order of conviction, as passed by the Id. Additional Chief Judicial Magistrate, Alipore in Case No. TR-27 of 1993.
2. Case of the Appellant is that he filed a petition of complaint before the Id. Magistrate, Alipore against one Dr. V. N. Chadda and Dr. Pijush Mukherjee alleging therein that due to their negligent act his daughter Nita died in the hospital. It was stated in the petition of complaint that the complainant''s daughter aged about 18 years and who was of sound health, fell sick on or about March 10, 1985. From March 12, 1985 up to 18th March, 1985 Nita was suffering from various troubles including pain on the left side of her stomach. As such, on 18th March, 1985 the complainant went to the residence of Dr. Chadda at about six in the morning and on his request said doctor visited the complainant''s house at 7.30 a.m. and prescribed some medicines and advised rest. In spite of that there was no improvement on the condition of Nita and as such, she was taken to the chamber of said Dr. Chadda who was informed about the complications from which Nita was suffering. Said Doctor assured that there was nothing to worry and prescribed some new medicines which were to be administered with the old ones. As in spite of that the condition of Nita deteriorated, so at about 9.30 p.m. on that day Dr. Chadda came to the complainant''s house and examined Nita and advised that she should be admitted to the Calcutta Medical Research Institution. Accordingly, Nita was admitted in the said hospital under the care of Dr. Pijush Mukherjee, accused No. 2. Dr. Mukherjee started treatment of Nita after taking instruction from Dr. Chadda over telephone. In the hospital Nita was given glucose. But with the administration of glucose her thirst for water did not diminish and she was given two injections -so that she could sleep. Due to the pushing of the second injection Nita began to loose her consciousness. On the next morning the complainant found that his daughter was sleeping very deeply and she was struggling for breath. Seeing the condition of the patient Dr. Mukherjee. rang Dr. Chadda and informed him about the condition of the patient. Thereafter oxygen was given to Nita and she was transferred to Intensive Therapy Unit on 2.3.1985 at about 5 p.m. it was found that the count of Sugar in the blood of Nita was 800 m.g. In spite of that antidote was administered to her. On the next day Nita expired in the said hospital at about 4.10 a.m.
3. The complainant has alleged that when Nita was admitted in the hospital then at that time in the column for preliminary diagnosis three diseases were mentioned viz. Diabetis Ketoasidosis (hereinafter referred to as D.K.), Malignant Malaria and G.B. Syndrome. Although, doctors had D. K. in mind, still no test for sugar either in urine or in blood was ordered. This fact, according to the complainant, indicates gross negligence on the part of the doctors. According to him it was sheer criminal negligence to administer dextrose solution from 11 p.m. to 8 p.m. of the next day i.e. for twenty hours during which period the patient passed on to deep unconsciousness and this fact is sufficient indication about the casual manner and the criminal negligence by which the doctors treated the patient. As such, the complainant has claimed that both the doctors should be punished as per provisions of Section 304A of the Indian Penal Code.
4. On the basis of the said complaint, cognizance was taken and trial was held against those two accused persons. During trial, complainant examined three witnesses. The accused persons did not examine any witness in their defence. The defence case, as it transpires from the trend of cross-examination and the statements made u/s 313 Code of Criminal Procedure is that of complete denial and that there was no willful negligence in the treatment of the patient.
5. Ld. Magistrate, after hearing the parties and upon consideration of the materials on record, was pleased to hold both the accused persons guilty for the offence u/s 304A of the Indian Penal Code and sentenced them accordingly.
6. Being aggrieved by and/or dissatisfied with the said order of conviction, both the doctors preferred an appeal before the Id. Additional Sessions Judge. Said appeal was ultimately heard by the Id. Judge, E.G. Act, cum-Additional Sessions Judge, Alipore, who by his judgment was pleased to acquit Dr. Pijush Mukherjee and at the same time sent the matter for retrial before the Id. Magistrate so far as Dr. V.N. Chadda is concerned and directing the Id. Magistrate to allow the complainant to adduce evidence as to whether there was any infrastructure available in the said hospital at the time of the incident regarding test of blood of the patient at the interval of two hours.
7. Against this order of retrial on a particular point, so far as Dr. V.N. Chadda is concerned, the complainant did not prefer any appeal/revisional application. However, it transpired that against the said order, a revisional application has been preferred on behalf of Dr. Chadda before this Court.
8. Be that as it may, so far as this appeal is concerned, we are to consider the legality and validity of the order of acquittal, as passed by the Id. Additional Sessions Judge, Alipore so far as Dr. Pijush Mukherjee is concerned. According to the Appellant the order of acquittal of Dr. Pijush Mukherjee has caused serious miscarriage of justice. Ld. Judge was not at all justified in exonerating the said doctor on the ground that he simply treated the patient under the instruction of Dr. V. N. Chadda. When the patient was admitted in the hospital, at that time Dr. Mukherjee had to examine the condition of the patient and he should have made necessary arrangement for adequate and proper treatment of the said patient. Ld. Judge did not appreciate the prosecution evidence in proper perspective while acquitting the Respondent/Dr. Pijush Mukherjee. He has further claimed that from the'' materials on record there cannot be any doubt that the daughter of the Appellant expired due to the medical negligence of the opposite party No. 1 and another doctor. The Appellant further claimed that as soon as in the hospital paper the symptom was mentioned as "D.K.", a professional doctor like the opposite party No. 1 ought to have taken step to combat it promptly and vigorously. He did not care to administer insulin till very late on the day next after her admission to the hospital. Even after the diagnosis of D. K. with count of sugar in blood being as high as 800 mg. the opposite party No. 1 continued to administer dextrose 5 per cent solution and the insulin was given in an inadequate dose in the body of the patient, which is against accepted norms of the medical science. The course of treatment, as followed by the Respondent, is a clear proof that he did not take appropriate care in treating the patient and this negligence must be termed as gross criminal negligence for which he should be held guilty for the offence u/s 304A of the Indian Penal Code.
9. But instead of convicting the Respondent, the Id. Judge was pleased to hold him not guilty and thereby acquitted him of the charge. The order, so passed by the Id. Judge is clearly perverse in nature and the result of non appreciation of the evidence on record. As such, the Appellant by filing this appeal has prayed for setting aside the order of acquittal and to pass necessary order of conviction so far as this Respondent is concerned.
10. In support of his contention, Id. Advocate for the Appellant, first of all, argued that from the very beginning this Respondent along with Dr. Chadda were negligent in treating Nita in the Hospital. According to him, the doctors were aware about the fact that the patient was suffering from blood sugar and for that reason the word ''D.K.'' was mentioned in the diagnosis chart. In spite of this knowledge, the doctors did not care to administer insulin to the patient and instead continued with administering glucose and thereby aggravated the condition of the patient. This act on the part of the doctors must be treated to be grossly negligent criminal act and as such, they are liable to be punished as per provisions of Section 304A of the Indian Penal Code.
11. Mr. Saha, Id. Advocate for the Appellant further argued that even when the blood sugar report of the patient was received then also the Respondent/doctor did not take any step to discontinue with glucose and in not giving insulin with adequate dose. According to the Id. Advocate for the Appellant the evidence on record shows that the doctors acted recklessly in treating the patient and thereby endangering her life and as such, they are criminally liable in addition to civil liability in tort. In this respect he has relied upon the decision reported in
12. Mr. Saha, Id. Advocate for the Appellant also argued with much stress that the treatment, as conducted by both the doctors so far as Nita was concerned, certainly shows that it was done in grossly rash and negligent manner and as due to such act Nita died, so both the doctors should be held guilty for committing the offence u/s 304A of the India Penal Code.
13. According to the Id. Advocate for the Appellant the Id. Magistrate was perfectly justified in coming to the conclusion that the patient died due to gross negligence on the part of both the doctors and as such, he was pleased to convict them accordingly. Ld. Appellate Court while acquitting the Respondent/doctor failed to appreciate the evidence in its proper perspective and without any reason whatsoever he was pleased to disbelieve the statement of the P.W. 2 Dr. S. Bhattacharjee, who deposed as an expert. This non appreciation of the material evidence, as available in the record, by the Id. Appellate Court certainly caused failure of justice and the judgment, so passed by the Id. Appellate Court must be held to be perverse in nature and under such circumstances, the order of acquittal, as passed by the said Appellate Court should be interfered with and should immediately be set aside and an order of conviction should be passed against the Respondent/doctor. In support of his contention that the High Court can always interfere with the order of acquittal if it is found that the evidence on record was not at all properly considered, he has cited decisions reported in
14. It may be pointed out that it is the case of the complainant that his daughter Nita was admitted in the hospital by the Respondent/doctor on the advice of Dr. V.N. Chadda, the senior Doctor, who admittedly was the family physician of the complainant. The complainant has claimed that after the admission the condition of Nita deteriorated and although in the medical history sheet it was observed that she was suffering from D.K. along with other diseases, still the Respondent/ doctor administered glucose and did not think of administering insulin to the said patient/Nita. Due to such action on the part of the Respondent, the condition of Nita deteriorated and ultimately she expired. The complainant has claimed that there was gross negligence on the part of the said doctor in the treatment of the patient and it should amount to criminal negligence, as mentioned in Section 304A of the Indian Penal Code. It appears that he Id. Magistrate accepted the contention of the complainant that although, from the very beginning the doctor was aware that the patient had blood sugar, still no step was taken for administering insulin to her and instead glucose was administered thereby allowed the blfiod sugar count to increase further. Now the question is whether this Respondent was aware about the fact that Nita had blood sugar. It may be mentioned here that Nita was very young and the Respondent/doctor cannot be disbelieved when he claimed that it was not in his mind that such a patient would suffer from blood sugar. It may also be pointed out that patient was admitted in the hospital on the advice of Dr. Chadda and the Respondent/ doctor simply followed the instruction of the said Dr. Chadda who in his statement, made u/s 313 Code of Criminal Procedure, was candid enough to admit that whatever medical steps were taken by the Respondent/doctor was under his advice. I have already pointed out that this Doctor Chadda was the family physician of the complainant and he had the occasion to treat the said patient before. As such when this Dr. Chadda claims that it was beyond his imagination that the patient had blood sugar, then that claim cannot be said to be unusual particularly when the complainant also being the father of the deceased did not suspect such a symptom before hand. So it must be said that the Respondent/doctor had sufficient reasons for not administrating insulin at the very outset to the patient concerned.
15. Ld. Advocate for the Appellant argued that it appears from the medical history-sheet that the word ''D.K.'' was there from the very beginning and it necessary means that the Respondent/doctor was aware that the patient was suffering from blood sugar. But if we look into the evidence as well as the document concerned, then it will appear that at the very outset the patient was treated for hysteria, malignant malaria and for other diseases. The word ''D.K.'' was inserted subsequently. The explanation of the Respondent/ doctor is that when after the blood report was received then only he could come to know that patient was suffering from blood sugar and immediately he entered the word ''D.K.'' in the medical history-chart. The manner in which this word ''D.K.'' has been inserted-in the said chart also supports the contention of the Respondent/doctor. Ld. Appellate Court also believed such claim of the Respondent/doctor. This finding of the Id. Appellate Court cannot be said to be unjust and importer, as claimed by the Id. Advocate for the Appellant. Moreover, if the claim of the Appellant is to be accepted, then we are to believe that both Doctor Chadda and Dr. Mukherjee allowed administration of glucose on the body of Nita although they had full knowledge that Nita was suffering from blood sugar. This attitude on the part of the doctors is unthinkable, particularly when it is the admitted position that Dr. Chadda was the family physician of the complainant. It is unbelievable that Dr. Chadda being a reputed doctor of a renowned hospital, intentionally took such steps in order to cause death of Nita, as claimed by the complainant. Under such circumstances, I am of opinion that the Id. Appellate Court was perfectly justified in observing that the doctors had no knowledge about the fact that Nita was suffering from blood sugar when she was admitted.
16. Ld. Advocate for the Appellant further argued that even when the blood report was received showing that Nita was suffering from blood sugar, then also the doctors did not think it necessary to administer insulin at a higher dose and in discontinuing with administration of dextrose. But from the evidence, as available in this case, it appears that after the blood report was received, such step was taken. The doctors have claimed that the dose of insulin, as administered was perfectly justified in view of state of health of the patient concerned. In this respect there cannot be any doubt that the doctors are the best persons to take a decision to that effect. It is not possible for the Court to come to a different conclusion in absence of any concrete counter evidence given by a proper person. The Supreme Court in various judgments has clearly stated that the doctors are the best judge to select the method of treatment that is to be administered to a particular patient. In this respect the decision reported in Jacob Mathew v. State of Punjab (2005) 5 Supreme 2971 is very much relevant. It is the leading decision on the point of medical negligence and the Supreme Court in no uncertain terms has indicated the course that is to be followed while deciding such type of cases. It has been observed therein that if the doctor while treating a patient is always afraid of any future criminal consequence in respect of his treatment, then it will not be possible for him to give proper treatment to the patient. Indiscriminate prosecution of medical professional for criminal negligence is certainly counter productive and does no service or good to the society. A doctor may commit mistake while treating a particular patient. But simply because there was a mistake on the part of a doctor in treating a patient that cannot be said to be a criminal negligent act, as claimed by the complainant by filing this case. In deciding whether there was criminal negligence on the part of the doctor it must be assured that there was gross negligence on the part of the doctor in treating a particular patient.
17. So far as the treatment of Nita is concerned, it appears that Dr. Mukherjee, the Respondent herein, was in-charge of the said patient in the hospital and the said patient was admitted under Dr. Chadda who was in fact controlling the treatment. It has transpired from the evidence that while the treatment was going on and when Nita''s condition did not improve in spite of treatment, then both the doctors decided to consult with two eminent physicians of the city. Accordingly the two doctors also examined the patient and approved the treatment which was going on. It means that both the doctors viz. Dr. Chadda and Dr. Mukherjee were very much concern about the patient and as they could not detect the cause of the disease properly so they thought it prudent to consult other two eminent physicians of the city. Had there been any intention on the part of the doctors to cause harm to the patient intentionally, then they would not have invited those two doctors. This fact certainly goes to show that there was no basis of the claim of the complainant that the doctors were grossly negligent in treating Nita in the said hospital.
18. it is the settled position that when such type of allegation of criminal negligence arises against any doctor, then in order to accept such contention the Court is to take appropriate medical assistance while coming to a definite conclusion. It is to be established before -the Court by a competent medical person that the doctors were grossly negligent in treating the patient. The complainant was very much aware about this settled position and as such, he examined the P.W. 2 Dr. S. Bhattacharjee in support of this contention. It appears that the complainant has claimed that this P.W. 2 is an expert in the line and this contention was also accepted by the Id. Magistrate. But the Id. Appellate Court did not accept the P.W. 2 as an expert and thereby did not place any reliance on his evidence in order to hold that the accused persons were guilty of gross negligence, as alleged by the complainant. It appears that the qualification of this doctor is M.B.B.S. He has got very little practice, as admitted by him. He has no expertise in treating diabetic patient. All these things have been admitted by this doctor in his evidence. If we look into this evidence, then it will appear that he mainly relied upon the books of medical jurisprudence written by various medical authors. But simply by quoting from the authority is not sufficient to hold a person guilty of gross negligence. Authors give their opinions in respect of a particular symptom after considering various aspects including the availability of proper infrastructure in the hospital where the patient was treated. What is applicable in a particular country may not be applicable in another country also. It is always dangerous to place reliance on the opinion of the author given in a book written on medical science unless and until it is supported by a competent medical expert by way of giving evidence in Court in order to come to a conclusion as to whether in a given case, on the basis of such observation in the book, it can be said that the doctors who were treating the patient at the material time were grossly negligent, the evidence, as given by the P.W. 2 does not at all inspire confidence and I think that the Id. Appellate Court was perfectly justified in not placing reliance upon the evidence of this witness. The decision of the Id. Appellate Court in this respect, cannot be said to be perverse in nature. Nor it can be said that he failed to appreciate the evidence of P. W. 2 in proper perspective. In the decision reported in Jacob Mathew v. State of Punjab (Supra) which also relied upon the decision reported in Dr. Suresh Gupta v. Government of NCT of Delhi (Supra) and the case reported in Balam v. Friern Hospital Management committed (1957) WLR 582 the Hon''ble Supreme Court has given a guideline for deciding as to whether a particular act of a doctor should be considered to be grossly negligent or not. In the said decision the Hon''ble Supreme Court clearly opined that a simple lack of care, an error of judgment or an accident is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a move skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. A highly skilled professional may be possessed of better qualities but that cannot be made the basis or the yard stick for judging the performance of the professional proceeded against on indictment of negligence. I have already discussed above that the doctors while treating Nita followed the accepted medical practice as per their knowledge and experience and even if there is an error in the treatment of the said patient; that cannot be equated with ''gross negligence''. Death of a young girl is always painful and we can presume the suffering of mental agony on the part of her parents. But simply for that reason a doctor cannot be punished for a criminal offence like Section 304A of the Indian Penal Code. If that is allowed to be done, then the doctors will be thinking twice for treating the patient in case of emergency and will not take any step which is required urgently for saving a critical patient. That will be a very dangerous situation for the society and it should not be encouraged. If there is any deficiency in the treatment of the patient resulting to here death, then it is always open for the complainant to file a civil case praying for damages against the erring doctor. Unless and until gross criminal negligence is established, it is not permissible to proceed against a medical professional for the offence u/s 304A of the Indian Penal Code. To my mind, the Id. Appellate Court was perfectly justified in holding that the Respondent/doctor was not guilty for the offence charged with and I find no reason whatsoever to interfere with the said finding, particularly when it appears from the judgment that when Dr. V.N. Chadda, under whom the patient was admitted in the hospital, was also found not guilty by the said Appellate Court and that finding of the said Court was not challenged by the complainant by way of preferring any appeal or revision. True it is, so far as Dr. Chadda is concerned, the Id. Appellate Court, although held that he was not grossly negligent in treating the patient, still he sent the matter to the Id. Magistrate for allowing the complainant to adduce further evidence regarding the infrastructure available in the hospital at the material time. But in spite of this finding that Dr. Chadda was not grossly negligent in treating the patient, the complainant/Appellant did not take any step in challenging the said decision. As such, it can be presumed that this finding of the Appellate Court has been accepted by the complainant/Appellant. I have already observed that Dr. Chadda has clearly admitted that whatever steps this Dr. Mukherjee/ Respondent took in respect of the treatment of Nita, was done under his instruction. So when there was no indictment by the Court so far as Dr. Chadda is concerned, then it cannot be said that the Respondent/ doctor Pijush Mukherjee should be held guilty for the offence u/s 304A of the Indian Penal Code.
19. Considering all these things, I am of opinion that there is no merit in this appeal and I find no scope for interference with the order of acquittal, as passed by the Id. Appellate Court so far as this Respondent/ doctor is concerned. To my mind, the order of acquittal, as passed by the Id. Appellate Court should be confirmed.
20. In the result, the Appeal is dismissed on contest. The order of acquittal, as passed by the Id. Appellate Court in respect of accused/ Respondent/Dr. Pijush Mukherjee is concerned, is confirmed.
21. Send a copy of this order along with L.C.R. to the Court below at once for information and taking action, as indicated above.
Xerox certified copy, if applied for, be handed over to the parties on urgent basis.
