P & H High court: The presence of doctors or the chemists for proving medicine bills must be confined only to extraordinary situations where the documents themselves are seriously in doubt.

 The practice of merely marking them but not exhibiting them in evidence and looking for proof by examination of a chemist is quite a needless exercise. The Tribunals must be more pragmatic in their approach while dealing with the cases for motor accident victims and invoke the power which is vested in them under Sections 168 and 169 in such a fashion that they do not shackle themselves by unrealistic procedures to meet the ends of justice/Unless the bills seem fabricated or there is something very peculiar elicited at the trial to doubt genuineness of the bills, the Tribunal dealing with the motor accident cases ought not to be looking for evidence through a chemist who had issued the bills. The production of the bills relating to the purchase of medicines during the period of hospitalization and oral evidence given by the party about purchasing of medicines ought to be taken as sufficient proof of authentication and admissibility of these documents. {Para 2}

3. Similarly, the practice of summoning doctors even for merely marking the MLR reports must be stopped. It must be remembered that the procedure under the M.V. Act is summary in character and documents which are maintained in the Government hospitals in the regular course of business require no more proof and a mere copy produced at the trial shall be received as public documents satisfying the requirements under Section 76 of the Indian Evidence Act. The summoning of the documents from lawful custody or copy of the document duly authenticated by the seal of the hospital which has issued the MLR must themselves be taken as sufficient proof for the same and the procedures that go to prolong the proceedings or delay them must be immediately curtailed by the Tribunals.

4. Even as regards the examination of doctors, it should be confined only to securing appropriate proof of disability and in special circumstances where there is a prolonged treatment or a requirement for a continuous treatment even beyond the period of trial, the attempt of the Tribunal must be to elicit from the doctors the prognosis for cure and the likely expenses that may have to be incurred in future. With a view to devise a procedure adopted in the manner of assigning dates for doctors and the need to save time for professionals like doctors, they must stay confined to what are most essential features to assist the Court to understand the nature of injuries and assess disability, if any to the claimant. They shall not be merely called to Courts for exhibiting some documents like MLR, period of treatment, etc. A hospital document produced by a party which is duly authenticated must be taken as sufficient as proof of the documents themselves and the requirement to produce the doctor for mere production of hospital documents must be immediately given up.

5. Some directions as regards the procedure become necessary only because it is a recurrent theme in our Tribunals that they reject the medical bills or keep out of reckoning the hospital records only because either the chemist is not examined or the doctor is not before the Court to speak about the hospital records. The presence of doctors or the chemists must be confined only to extraordinary situations where the documents themselves are seriously in doubt.

 IN THE HIGH COURT OF PUNJAB AND HARYANA

F.A.O. No. 12 of 1994 (O&M)

Decided On: 09.02.2012

Parsanni Vs. Sube Singh and Ors.

Hon'ble Judges/Coram:

K. Kannan, J.

Citation: 2011 SCC ONLINE P&H 2510,MANU/PH/4065/2012

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Supreme Court: How to appreciate evidence of prosecution if weapon of offence is not shown to doctor to obtain his opinion?

A very relevant piece of evidence which has been noticed by the High Court, but not given due consideration, is that apart from the blood-stained knife (Ex. P-3) and certain other items mentioned in the letter of Investigating Officer, one sealed cardboard parcel containing blue soaked boiler suit worn by the deceased at the time of incident was also sent to CFSL for examination and opinion. In the said sealed cardboard box, two Exhibits (2a and 2b) were found. Ex. 2a was the dark blue coloured boiler suit and the Ex. 2b was metallic blade fitted in a wooden handle like a knife. The length of the metallic blade is about 5.5 centimeter with one edge sharp and another blunt having a round tip at one end. None of the prosecution witnesses including the Investigating Officer, stated anything as to how and wherefrom the said knife (Ex. 2b) was recovered and kept with the boiler suit in the same cardboard box. This knife (Ex. 2b) also bore human blood-stained matching 'O' group of the deceased. As per the post mortem report, stab wounds on the neck and chest of the deceased might be by the use of the said weapon Ex. 2b. The said knife (Ex. 2b) was not subjected to examination to find out the presence of fingerprints, if any, of the Appellant. The said knife (Ex. 2b) was also not shown to the doctor (PW-19) who conducted the post mortem examination on the body of the deceased, to seek his opinion if the same could have been possible weapon of offence. Even the opinion of the expert witness (PW-22) was not sought as to whether the cuts on the boiler suit could have been caused by that knife. {Para 29}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1300 of 2009

Decided On: 01.07.2013

Majendran Langeswaran Vs. State (NCT of Delhi) and Ors.

Hon'ble Judges/Coram:

P. Sathasivam and M.Y. Eqbal, JJ.

Author: M.Y. Eqbal, J.

Citation: 2013 INSC 401, MANU/SC/0631/2013,AIR 2013 SUPREME COURT 2790, 2013 (7) SCC 192,

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Supreme court: How to appreciate evidence of doctor who has conducted post mortem if his evidence is self contradictory?

During further cross-examination, PW-8 recognised Keith Simpson as a world authority on medical jurisprudence. But she did not agree with the said Keith Simpson's opinion that Parikh's book is a comprehensive and outstanding book on reference for court work. This reference to Keith Simpson's opinion in Dr. Parikh's book was put to PW-8, to suggest to her that if the hypostasis extends to the head, it may be mistaken as a violence to the neck or smothering as found at page 159 of Dr. Parikh's text-book (4th Edn. 1995). She disagreed with this statement as found in Parikh's book, solely based on her personal experience and not supported by any other authority. While so disagreeing with Parikh's book, she insisted on stating that the horizontal and uniformly hardened and thickened area mentioned by her is injury No. 4 must be due to ligature, even though according to her post mortem report and evidence in the court, she had not seen any ligature marks on the body of Jabeena. {Para 20}

21. The defence has further confronted PW-8 with the statement found in the book "The Essentials of Forensic Medicine" by Dr. K.S. Narayana Reddy to establish the fact, that on decomposition of a body, the gas collects in the subcutaneous tissue and becomes emphysamatous. This would then create a false impression of ante mortem obesity (stout). PW-8 disagreed with this opinion also, without supporting her opinion on the basis of any other authority.Therefore, these suggestions of the defence made to PW-8 cannot be lightly brushed aside. More so, in the background of the fact that PW-8 had conducted the post mortem on Jabeena's body nearly 8 days after it was buried, and admittedly even according to PW-8, the body of Jabeena had decomposed considerably at the time of the post mortem examination. This is coupled with the fact that she has admitted in her evidence that she has no other authoritative text to contradict or support her, as against the statements found in the text books like the "Lyon's Medical Jurisprudence", Parikh's text book on Medical Jurisprudence, The Essentials of Forensic Medicines by Dr. K.S. Narayana Reddy.

23. We are aware of the fact that sufficient weightage should be given to the evidence of the doctor who has conducted the post mortem, as compared to the statements found in the text books, but giving weightage does not ipso facto mean that each and every statement made by a medical witness should be accepted on its face value even when it is self-contradictory.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 345 of 1994

Decided On: 20.07.1999

Mohd. Zahid Vs. State of Tamil Nadu

Hon'ble Judges/Coram:

G.B. Pattanaik and N. Santosh Hegde, JJ.

Author: N. Santosh Hegde, J.

Citation:  MANU/SC/0407/1999, AIR 1999 SUPREME COURT 2416,1999 (8) SCC 638,

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Supreme Court explains how to appreciate evidence of doctor in criminal trial

We think that this is not a case which should have been summarily rejected by the learned Single Judge and moreover we do not think that the learned Judge was right in observing that "our courts have always taken the doctors as witnesses of truth." Even where a doctor has deposed in court, his evidence has got to be appreciated like the evidence of any other witness and there is no irrefutable presumption that a doctor is always a witness of truth. 

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 47 of 1982

Decided On: 22.01.1982

Mayur Panabhai Shah Vs. State of Gujarat

Hon'ble Judges/Coram:

E.S. Venkataramiah and P.N. Bhagwati, JJ.

Citation: MANU/SC/0085/1982, AIR1983SC66, 1982CRILJ1972, 1982(1)SCALE523, (1982)2SCC396,

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Supreme Court Judgment on appreciation of evidence if there is discrepancy in Medical Evidence and Ocular Evidence

Medical Evidence v. Ocular Evidence

31. In State of Haryana v. Bhagirath and Ors. MANU/SC/0362/1999 : (1999) 5 SCC 96, it was held as follows:

The opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject.

[Emphasis added]

32. Drawing on Bhagirath's case (supra.), this Court has held that where the medical evidence is at variance with ocular evidence, it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the "variable" keeping the medical evidence as the "constant". Where the eyewitnesses' account is found credible and trustworthy, a medical opinion pointing to alternative possibilities can not be accepted as conclusive. The eyewitnesses' account requires a careful independent assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the "credit" of the witnesses; their performance in the witness box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Vide Thaman Kumar v. State of Union Territory of Chandigarh MANU/SC/0386/2003 : (2003) 6 SCC 380; and Krishnan v. State MANU/SC/0505/2003 : (2003) 7 SCC 56).

33. In Solanki Chimanbhai Ukabhai v. State of Gujarat MANU/SC/0150/1983 : AIR 1983 SC 484, this Court observed,

Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.

35. In State of U.P. v. Hari Chand MANU/SC/0690/2009 : (2009) 13 SCC 542, this Court re-iterated the aforementioned position of law and stated that, "In any event unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy."

36. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1243 of 2007

Decided On: 14.09.2010

Abdul Sayeed  Vs.    State of Madhya Pradesh

 Hon'ble Judges/Coram:

P. Sathasivam and B.S. Chauhan, JJ.

Citation: MANU/SC/0702/2010,(2010) 10 SCC 259.

Read full judgment here: Click here

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Important Supreme Court and Bombay HC Caselaws on S 156(3) of CRPC

1) Supreme Court: Magistrate Can Invoke Power U/S 156(3) CrPC Even At Post-Cognizance Stage 

https://www.lawweb.in/2019/10/supreme-court-magistrate-can-invoke.html

2) Whether Magistrate can pass order U/S 156(3) of CRPC under prevention of Corruption Act?

https://www.lawweb.in/2019/08/whether-magistrate-can-pass-order-us.html

3) Whether revision is maintainable if FIR is registered on basis of order passed by Magistrate U/S 156 of CRPC?

https://www.lawweb.in/2019/08/whether-revision-is-maintainable-if-fir.html

4) Whether Magistrate should follow principles laid down by Supreme Court for registration of FIR against doctors under S. 156(3) CrPC?

https://www.lawweb.in/2019/06/whether-magistrate-should-follow.html

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When postmortem report can be treated as substantive evidence without examining doctor?

Learned counsel for the appellants at the first instance

submitted that the doctor, who conducted the postmortem

examination of the deceased Smt. Ram Devi, was not

examined in the court, though the same has been marked as

exhibit by the court. Such a procedure adopted by the trial court

could not be approved, as the contents of the postmortem

report could not be admitted under Section 294 of the Code of

Criminal Procedure, unless, the same was duly proved by the

doctor, who had prepared the same.

11. The submission of the learned counsel for the appellants

is legally not sustainable, in view of the settled position of law

that if the genuineness of any document filed by a party is not

disputed by the opposite party, it can be treated as substantive

evidence under sub-section (3) of Section 294 Cr.P.C. The

Hon'ble Supreme Court in case of Akhtar Vs State of

Uttaranchal (2009) 13 SCC 722, has observed that if the

defence has admitted the genuineness of the postmortem

report before the trial court, the genuineness and veracity of the

document stands proved and shall be treated as valid evidence

under Section 294 Cr.P.C. The relevant portion is quoted

below:-

“21. It has been argued that non-examination of the

concerned medical officers is fatal for the prosecution.

However, there is no denial of the fact that the defence

admitted the genuineness of the injury reports and the post

mortem examination reports before the trial court. So the

genuineness and authenticity of the documents stands

proved and shall be treated as valid evidence under

Section 294 of the CrPC. It is settled position of law that if

the genuineness of any document filed by a party is not

disputed by the opposite party it can be read as

substantive evidence under sub-Section (3) of Section 294

CrPC. Accordingly, the post-mortem report, if its

genuineness is not disputed by the opposite party, the said

post-mortem report can be read as substantive evidence to

prove the correctness of its contents without the doctor

concerned being examined.”

ALLAHABAD HIGH COURT

Case :- CRIMINAL APPEAL No. - 3079 of 1985

Bijendra Singh  Vs State of U.P.

Hon'ble Govind Mathur,Chief Justice

Hon'ble Vivek Varma,J.

(Per.:-Hon. Vivek Varma, J)

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Supreme Court: Court should examine medical expert prior to framing of charge in case of medical negligence

“Jacob Mathew Vs. State of Punjab & Anr.”, reported

in (2005) 6 SCC 1. Paragraph 52 of the Judgment

reads as under :-

“52. Statutory Rules or Executive Instructions

incorporating certain guidelines need to be

framed and issued by the Government of India

and/or the State Governments in consultation with

the Medical Council of India. So long as it is

not done, we propose to lay down certain

guidelines for the future which should govern the

prosecution of doctors for offences of which

criminal rashness or criminal negligence is an

ingredient. A private complaint may not be

entertained unless the complainant has produced

prima facie evidence before the Court in the form

of a credible opinion given by another competent

doctor to support the charge of rashness or

negligence on the part of the accused doctor. The

investigating officer should, before proceeding

against the doctor accused of rash or negligent

act or omission, obtain an independent and

competent medical opinion preferably from a

doctor in government service qualified in that

branch of medical practice who can normally be

expected to give an impartial and unbiased

opinion applying Bolam’s test to the facts

collected in the investigation. A doctor accused

of rashness or negligence, may not be arrested in

a routine manner (simply because a charge has

been levelled against him). Unless his arrest is

necessary for furthering the investigation or for

collecting evidence or unless the investigation

officer feels satisfied that the doctor proceeded

against would not make himself available to face

the prosecution unless arrested, the arrest may

be withheld.”

As admittedly, no medical expert has been

examined in this case, we set aside the impugned

orders passed by the courts below and remand the case

to the trial court to examine the witnesses and to

take the view of the medical expert on behalf of the

complainant and only thereafter, to form an opinion

whether any charge is made out in the case or not.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2063 OF 2010

ARUNA Vs  MUKUND 

Dated: OCTOBER 03, 2019.

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Whether Magistrate should follow principles laid down by Supreme Court for registration of FIR against doctors under S. 156(3) CrPC?

The principle of law laid down by the Supreme Court in Jacob Mathew(supra) and Martin F. D'Souza (supra) for registration of criminal case against a doctor before registering an FIR under Section 154(1) of the CrPC by getting an expert opinion from a qualified doctor would apply with equal force while registering/directing for registration of offence under Section 156(3) of the CrPC, because it is also another mode of getting the FIR registered for which the person concerned has failed to get the FIR registered under Sections 154(1) & 154(3) of the CrPC, as by virtue of Section 156(1) of the CrPC, it is the power and jurisdiction of the police officer to investigate any cognizable offence without the order of the Magistrate and by virtue of Section 156(3) of the CrPC, the Magistrate is empowered under Section 190 to order such an investigation as mentioned in Section 156(3) of the CrPC. Therefore, before directing investigation and registration of FIR under Section 156(3) of the CrPC, the principle of law laid down by the Supreme Court in Jacob Mathew (para-52) (supra) and Martin F. D'Souza(para-106) (supra) is mandatory and has to be followed before directing investigation against medical professionals by obtaining medical opinion from experts is sine qua non for direction of registration and investigation of offence against medical practitioners. Thus, the course open to the learned Chief Judicial Magistrate is to call for the medical opinion of experts in line with and as per the direction in Jacob Mathew (supra) and Martin F. D'Souza (supra) before entertaining an application under Section 156(3) of the CrPC and directing registration of FIR and investigation against medical professional, which was not followed by the learned Chief Judicial Magistrate while granting the application under Section 156(3) of the CrPC making the order vulnerable.

In the High Court of Chhattisgarh at Bilaspur

(Before Sanjay K. Agrawal, J.)

Dr. Smt. Krishna Dixit  v. State of Chhattisgarh,

Writ Petition (Cr.) No. 146 of 2016

Decided on May 14, 2019

Citation: 2019 SCC OnLine Chh 47

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Whether court can discard dying declaration even if doctor has given certificate that deceased was in fit state of mind at time of dying declaration?

In our view, though dying declarations stand proved, the issue is whether we can convict the Accused only on the basis of these dying declarations. In a case of the present nature where the victim had 98% burns and the doctor has stated from the record that a painkiller was injected at 3.30 a.m. and the dying declaration had been recorded thereafter, there is a serious doubt whether the victim was in a fit state of mind to make the statement. She was suffering from 98% burns. She must have been in great agony and once a sedative had been injected, the possibility of her being in a state of delusion cannot be completely ruled out. It would also be pertinent to mention that the endorsement made by the doctor that the victim was in a fit state of mind to make the statement has been made not before the statement but after the statement was recorded. Normally it should be the other way round.

14. No doubt, a dying declaration is an extremely important piece of evidence and where the Court is satisfied that the dying declaration is truthful, voluntary and not a result of any extraneous influence, the Court can convict the Accused only on the basis of a dying declaration. We need not refer to the entire law but it would be apposite to refer to the judgment of this Court in the case of Sham Shankar Kankaria v. State of Maharashtra MANU/SC/8463/2006 : (2006) 13 SCC 165 held as follows:

11. Though a dying declaration is entitled to great weight, it is worthwhile to note that the Accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of deceased was not as a result of either tutoring or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute Rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The Rule requiring corroboration is merely a Rule of prudence....

15. In the present case, as we have already held above, there was some doubt as to whether the victim was in a fit state of mind to make the statement. No doubt, the doctor had stated that she was in a fit state of mind but he himself had, in his evidence, admitted that in the case of a victim with 98% burns, the shock may lead to delusion. Furthermore, in our view, the combined effect of the trauma with the administration of painkillers could lead to a case of possible delusion, and therefore, there is a need to look for corroborative evidence in the present case.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 694-695 of 2011

Decided On: 09.04.2019

 Sampat Babso Kale Vs. The State of Maharashtra

Hon'ble Judges/Coram:

S.A. Bobde and Deepak Gupta, JJ.

Citation: (2019) 4 SCC 739

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When court should disregard evidence of doctor that injury was due to fall?

 Under Section 161, Code of Criminal Procedure confirming the sexual assault on her after she turned hostile, contending that she had suffered injury in a fall. The nature of injuries on her person are well nigh impossible due to a fall. Any opinion of the doctor that such injury could be caused by a fall, does not establish the injury as due to fall, as a fact but remains a mere expression of an opinion.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 913 of 2016

Decided On: 28.09.2018

Hemudan Nanbha Gadhvi  Vs. State of Gujarat

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Whether Clinics, Nursing Homes Employing Over 10 Persons Come Under Purview Of Maharashtra Shops And Establishments Act?

 In the result, we uphold the constitutional validity of the
provisions of Section 2(4) defining “establishment”, which takes
within its sweep the establishment of medical practitioner as
defined, having ten or more employees for applicability of the

Maharashtra Shops and Establishments Act, 2017, Section 4

therein, which empowers the State Government to declare any
establishment or class of establishments to which the provisions of

the new Act would be applicable by issuing notifiction in the
Official Gazette; and Sections 6 and 7 therein to the extent they
require registration of establishment where the strength of
employees engaged is ten or more, and provide an intimation of
the establishment to the Facilitator where the strength of
employees engged is less than ten.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.7590 of 2017

Dr. Pradeep Arora, V The State of Maharashtra,

CORAM : R.K. DESHPANDE & VINAY JOSHI, JJ.
DATED : 2-11-2018

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When medical negligence is not made out against Doctor?

That apart, we also find that respondent No.1
never raised the objection of “consent issue” to the
appellant or/and opposite party respondent No.2 Hospital
and it was for the first time in the
complaint, she raised this issue and made a
foundation to claim compensation from the
appellant. Nothing prevented her or her husband to
raise the issue of consent immediately after
performance the surgery while she was in hospital
as an indoor patient and even after discharge that
being the natural conduct of any patient. It was,
however, not done.
40. It is not in dispute that respondent No.1 failed
to prove any specific kind of negligence of the
appellant while performing the operation or/and
thereafter. Indeed, even the National Commission
in Para 18 held this issue in favour of the appellant
in following words:

“18. Yet another grievance of the
complainant is that she was not treated with
care during her hospitalization from 07.08.96
to 18.08.96. No specific instances which can
amount to carelessness or negligence on the
part of the surgeon or the nursing home have
been brought on record and, therefore, we are
unable to hold that there was any lack of care
amounting to negligence during her stay in
the nursing home for which either the
surgeon or nursing home can be made liable.”
41. Likewise the National Commission further held
in favour of the appellant in para 19 that the stones,
which were removed in the second operation at
Ganga Ram Hospital after 11 months (04.06.1997)
were the same which were noticed by the appellant
while performing the first surgery on 08.08.1996
and remained inside. In other words, respondent
No.1 failed to prove with the aid of any medical
evidence that the stones, which were noticed in the
second surgery performed after 11 months, were the
same stones which the appellant failed to remove
from the Gall Bladder. It is apposite to note the

finding of the National Commission in para 19
hereinbelow.
“………We have already found that from the
material placed on record that it is not
possible to hold with certainty that any of
the calculi which were removed from the bile
duct of the complainant at Sir Ganga Ram
Hospital was the same for which she had
undergone Cholecystectomy at the hands of
the surgeon and, therefore, the only lapse
which we can find on the part of the surgeon
is that he did not care to bestow the kind of
attention which the problem of complainant
required when she consulted him after the
procedure of Cholecystectomy, more
particularly during AprilMay
1997……….”
42. Had it been so, the appellant could be held
liable for failure on his part to remove the stones
and allowed them to remain in the Gall Bladder for
such a long time. There was no medical evidence
adduced by respondent No.1 to prove this fact.
43. In our opinion, no medical evidence of any
expert was adduced by respondent No.1 to prove
any specific kind of negligence on the part of the
appellant in performing the surgery (conventional

surgery) of Gall Bladder except raising the issue of
“nongiving
of express consent”. This issue we have
already dealt with above and found no merit
therein. In our view, respondent No.1 was under
legal obligation to prove a specific kind of negligence
on the part of the appellant in performing the
surgery and also was required to prove that any
subsequent ailment which she suffered on her
return to home such as, jaundice, dysentery, fever,
loss of weight etc. were suffered by her only due to
improper performance of conventional surgery by
the appellant and if the surgery had been
successful, she would not have suffered any kind of
these ailments.
44. In our opinion, there has to be a direct nexus
with these two factors to sue a doctor for his
negligence. Suffering of ailment by the patient after
surgery is one thing. It may be due to myriad

reasons known in medical jurisprudence. Whereas
suffering of any such ailment as a result of
improper performance of the surgery and that too
with the degree of negligence on the part of Doctor
is another thing. To prove the case of negligence of
a doctor, the medical evidence of experts in field to
prove the latter is required. Simply proving the
former is not sufficient.
45. In our considered opinion, respondent No. 1
was not able to prove that the ailments which she
suffered after she returned home from the Hospital
on 08.08.1996 were as a result of faulty surgery
performed by the appellant.
46. Learned counsel for respondent No.1
(complainant) vehemently argued that respondent
No.1 suffered immensely due to the surgery
performed by the appellant and that she was

rightly, therefore, awarded the compensation by the
National Commission.
47. Learned counsel for respondent No.1 also
placed reliance on the Discharge Certificate which,
according to her, mentions that Laparoscopy
surgery was performed on respondent No.1. On this
basis, learned counsel contended that respondent
No.1 had not given her consent for performing
general surgery.
48. In the light of the detailed discussion made
above on the issues arising in the case including the
issue of grant of consent, we are unable to accept
the aforesaid submissions of learned counsel for
respondent No.1.
49. It is apt to remember the words of the then
Chief Justice of India when he said in Jacob
Mathew’s case (supra) which reads as under:
“The subject of negligence in the context of
medical profession necessarily calls for

treatment with a difference. There is a
marked tendency to look for a human actor
to blame for an untoward event, a tendency
that is closely linked with a desire to punish.
Things have gone wrong and therefore
somebody must be found to answer for it. An
empirical study reveals that background to a
mishap is frequently far more complex than
may generally be assumed. It can be
demonstrated that actual blame for the
outcome has to be attributed with great
caution. For a medical accident or failure,
the responsibility may lie with the medical
practitioner, and equally it may not. The
inadequacies of the system, the specific
circumstances of the case, the nature of
human psychology itself and sheer chance
may have combined to produce a result in
which the doctor’s contribution is either
relatively or completely blameless. The
human body and its working is nothing less
than a highly complex machine. Coupled
with the complexities of medical science, the
scope for misimpressions, misgivings and
misplaced allegations against eh operator i.e.
the doctor, cannot be ruled out. One may
have notions of best or ideal practice which
are different from the reality of how medical
practice is carried on or how the doctor
functions in real life. The factors of pressing
need and limited resources cannot be ruled
out from consideration. Dealing with a case
of medical negligence needs a deeper
understanding of the practical side of
medicine. The purpose of holding a
professional liable for his act or omission, if
negligent, is to make life safer and to
eliminate the possibility of recurrence of
negligence in future. The human body and

medical science, both are too complex to be
easily understood. To hold in favour of
existence of negligence, associated with the
action or inaction of a medical professional,
requires an indepth
understanding of the
working of a professional as also the nature
of the job and of errors committed by chance,
which do not necessarily involve the element
of culpability.”

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.3971 OF 2011

Dr. S.K. Jhunjhunwala  Vs Mrs. Dhanwanti Kumar & Anr.

Abhay Manohar Sapre, J.
Dated:October 01, 2018

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Whether defendant can be permitted to examine doctor to ascertain mental condition of plaintiff at the stage of final argument ?

 In view of the own admission of the plaintiff/petitioner No. 2 in the plaint that she had instituted the suit for cancellation of sale deed in the year 2012 being next friend of plaintiff No. 1 as noted above, this Court is of the view that no further enquiry was required to be made by the Court under Order XXXII, Rule 1 to 15 of the Code of Civil Procedure. The scope of enquiry under the provisions of Order XXXII, Rule 1 to 15 is limited for the purpose of appointment of next friend to represent a plaintiff. Plaintiff No. 1 is properly represented by his wife. As per the plaint averments, plaintiff No. 2 (wife) is capable of protecting the interest of the plaintiff No. 1 (her husband) and her interest in the subject-matter of suit cannot be said to be adverse to that of the plaintiff No. 1.

17. In view of the above discussion, the argument of learned Counsel for the petitioner that the enquiry required to be made under Order XXXII, Rule 15 (Rule 1 to 15) of the Code of Civil Procedure has not been done by the Court, below, is wholly misconceived.

 In the instant case, the Appellate Court has considered the prayer of the appellant to adduce additional oral evidence of Doctor at the stage of final argument in appeal and has opined that the documentary evidences filed by the appellant during the course of hearing in the appeal had already been taken on record vide order dated 6.7.2017. In view of the available evidence taken on record, there was no further requirement of additional oral evidence of Doctor.

25. Further, an enquiry has already been made by the First Appellate Court regarding the mental condition of Sri Vinod Kumar (plaintiff No. 1) who was present before it on 6.7.2017. The exercise of discretion by the First Appellate Court at the stage of final disposal of the appeal in holding that no further evidence was required, cannot be said to be an improper exercise of judicial discretion.

IN THE HIGH COURT OF ALLAHABAD

Civil Misc. Petition No. 4468 of 2017 and Matters Under Article 227 No. 3194 of 2017

Decided On: 28.07.2017

Vinod Kumar  Vs. Tarachand

Hon'ble Judges/Coram:

Sunita Agarwal, J.

Citation: AIR 2018(NOC) 703 ALL

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Whether doctor prescribing medicine without diagnosis would be held guilty for medical negligence?

At this stage, a line of distinction needs to be withdrawn. As is
held above, in case there was an error in diagnosis, it would be a civil
liability. But in the present case,
(i) the patient was directed to be admitted in the absence of the
doctors;
(ii) the medicines were administered on telephonic instructions
without even enquiring about the symptoms or nature of the pain
suffered by the patient;
(iii) there was no resident medical officer;
(iv) no alternative arrangement was made;
(v) In fact, Dr. Karmarkar was also called by the staff when the
health of the patient started deteriorating. The applicants had not even
bothered to ask Dr. Karmarkar about the treatment given by him or the
condition of the patient.
(vi) All these when the complainant wanted to admit his wife in

another hospital.
There is gross negligence from the point of standard of care.

Prescription without diagnosis would amount to culpable
negligence. This issue is decided in the affirmative.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL ANTICIPATORY BAIL APPLICATION NO. 513 OF 2018
1 Deepa Sanjeev Pawaskar.
2 Sanjeev Anant Pawaskar.
V/s.
The State of Maharashtra.
CORAM : SMT. SADHANA S. JADHAV,J.

PRONOUNCED ON : JULY 25, 2018.

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When offence of criminal conspiracy is not made out in case of medical negligence?

Facts:

Wife of Respondent No. 1 was under the medical treatment of delinquent doctors. She, however, could not survive. Her husband-Respondent No. 1 was not satisfied with the manner in which medical treatment was given by these doctors. He, therefore, lodged a written complaint with the West Bengal Medical Council against those three doctors alleging negligence and maltreatment of his wife by the said three medical practitioners. On receiving the complaint, the Medical Council referred the same to the Inquiry Committee. This Committee comprised five doctors (other Appellants were the members of the Medical Council). The Inquiry Committee took opinion of certain experts in their field and the opinion of the said experts was in favour of the Complainant. Notwithstanding the same, the Inquiry Committee submitted its report giving findings that the delinquent doctors were not at fault. On the basis of that report, they were exonerated by the State Medical Council. The Complainant had also initiated proceedings against the delinquent doctors before the National Consumer Disputes Redressal Commission (NCDRC) alleging deficiency in service against several medical practitioners including the said three delinquent doctors. Though NCDRC rejected the complaint, in the appeal filed against the orders of the NCDRC, the present Court held the said delinquent doctors guilty of negligence but at the same time, it was found that their negligence was not of criminal nature but of civil consequence and, therefore, awarded damages in favour of the Complainant and against the delinquent doctors. It had been finally held that they acted with negligence while according medical treatment to the wife of the Complainant.

The Complainant filed criminal complaint against the members of the Inquiry Committee of State Medical Council including the Appellants alleging that they had committed offence under Section 201 read with Section 120B of the Indian Penal Code, 1860. The complaint was founded on the allegations that even when there were four reports of four different medical experts to the effect that delinquent doctors were guilty of professional misconduct as they had acted with negligence while giving medical treatment to the wife of the complainant, these Accused persons entered into conspiracy to save the delinquent doctors. The concerned Magistrate took cognizance of the said complaint and issued process. On receipt of the notice, the Appellants challenged the proceedings before the High Court submitting that no case of conspiracy was made out in the complaint and the 'complaint was malicious and untenable' and it could not be said that any offence by the Appellants was committed under Section 201 read with Section 120B of the Indian Penal Code, 1860. The High Court dismissed the petition. 
Ratio,
As mentioned above, there is a charge of conspiracy as well and, for this purpose, provisions of Section 120B Indian Penal Code are invoked. It makes the following reading:

120B. Punishment of criminal conspiracy.--(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.

16. Here again, criminal conspiracy that is referred to and defined Under Section 120A Indian Penal Code has to be in furtherance of committing an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards etc. The alleged conspiracy even as per the complaint was not to commit any of the offences as mentioned above. As per the complainant himself, the so-called conspiracy, if at all, was to save the delinquent doctors in disciplinary proceedings taken against them. This provision also, therefore, has no application.


IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1163 of 2016 (Arising out of SLP (Criminal) No. 8024 of 2013)

Decided On: 29.11.2016

Asoke Kumar Chaudhuri and Ors.Vs. Kunal Saha and Ors.

Hon'ble Judges/Coram:
A.K. Sikri and Abhay Manohar Sapre, JJ.
Citation:(2017) 11 SCC 561.

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Whether dying declaration not certified by doctor can be relied on?

In case of Chacko vs. State of Kerala reported in
2003(1) SCC 112, the Apex Court has held as follows :-
“ It is always not necessary that a dying declaration
should be certified by a doctor before the reliance could be
placed on the same but then in the absence of any such
certificate, the Court should be satisfied that from the
material on record it is safe to place reliance on such uncertified
declaration.”
13. It appears that this statement was taken by the Police
Officer immediately after reaching the informant‟s bed at the Primary
Health Centre and for the said reason, the fardbeyan is to be treated as
dying declaration and there is no point to disbelieve it merely because
it was not certified by the doctor relating to his consciousness and
mental condition of the informant. Besides this, there is corroborative
evidence also as the appellant was seen fleeing away by P.W.1 and
P.W.2 and informant also disclosed name of the appellant as his 
assailant.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.1401 of 2010

Hari Narayan Singh, V The State of Bihar

 CORAM:  MR. JUSTICE SAMARENDRA PRATAP SINGH
 And
 MR. JUSTICE ARUN KUMAR

Date: 05 -07-2017

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When prosecution against doctor for medical negligence is liable to be quashed?

In the present case, charge sheet has been submitted, merely on
the basis of statement of Doctor Himani Negi of Sahara Hospital, who
had subsequently treated the patient. She has stated that there was a
blood clot of 600-700 ML between peritoneum and rectus which was
cleaned by her and she also resorted to blood transfusion to save life of
the patient. Due to this negligence of private Doctor any untoward
event could have happened.
19. Thus from the totality of the facts and circumstances, it appears
that the submission of charge-sheet was not in accordance with the
guidelines given by Hon’ble Apex Court in Jacob Mathew’s case
(supra). Firstly, no independent opinion of Government Doctor was
obtained regarding negligence of petitioner before submission of
charge-sheet. Though opinion of Government Doctor was not
compulsory, there should have been opinion of independent Doctor. The
opinion of Doctor Himani Negi can not be said to be independent
opinion as she herself was involved in the case and had treated the
patient. Secondly, applying BOLAM’s Test only ordinary competence
man of medical was to be exercised and not special medical skill was
required. A simple lack of care, and error of judgment or an accident
cannot be said to be poof of negligence on the part of the petitioner. It is
not the case of prosecution that the petitioner did not possess requisite
skill, which she professed to have possessed or she did not exercise of
reasonable competence in the given case, the skill which she did
possess.
20. The element of cheating is also not made out merely because the
petitioner had given assurance to control the condition of patient. There
is nothing on record to show that she concealed any fact regarding
treatment or that she did not possess the qualification which she
professed. She had exercised the skill expected from a man of ordinary
competence of medical.
21. Thus the allegations made in the First Information Report, even if
they are taken at their face value and accepted in their entirety, do not
prima facie constitute any offence or make out a case against the
accused and where no prima facie case is made out against accused, it is
liable to be quashed 
ALLAHABAD HIGH COURT
Delivered on 29.05.2017

Case :- U/S 482/378/407 No. - 4194 of 2015
 Dr. Meera Malik
V
 The State Of U.P and another

Hon'ble Ravindra Nath Mishra-II,J.

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Whether second protest petition is maintainable?

On going through the above said observation made by the Hon'ble Apex Court, it is clear that the law does not prohibit filing or entertaining the second complaint or even second protest petition before the Court in order to administer complete justice between the parties and opportunity to be given to the complainant to file necessary additional protest petition or by means of private complaint to bring the factual aspects before the Court in order to enable the Court whether it can proceed against the accused or not.

IN THE HIGH COURT OF KARNATAKA (KALABURAGI BENCH)

Criminal Petition No. 201225/2015

Decided On: 22.04.2016

 Rajeshwari

Vs.

 The State of Karnataka and Ors.

Hon'ble Judges/Coram:

K.N. Phaneendra, J.

Citation: 2017 CRLJ(NOC)17 KAR

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Precaution to be taken by court while issuing process against doctor for medical negligence

The learned counsel appearing for the petitioner has also drawn my attention submitting that, whenever a case is filed against a Doctor the court should not mechanically deal with the matter. It should apply its judicious mind before calling upon the Doctor before the Court, for the reason that, the Doctor should not be harassed. In day-to-day affairs, they may commit certain mistakes, but every mistake of the Doctor cannot be called as negligence, which will fall under Section 304-A of IPC. There should be some high standard of allegations based on factual aspects, on which the court can call upon the Doctor to explain by taking cognizance and issuing summons. In this regard, it is worth to mention here a decision of the Hon'ble Apex Court reported in MANU/SC/0225/2009 : AIR 2009 SC 2049 between Martin F. D'Souza v. Mohd. Ishfaq, wherein the Hon'ble Apex Court has observed that,-

"A medical practitioner is not liable to be held as negligent, simply because, things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below the standards of a reasonably competent practitioner in his field."

It is also observed by the Hon'ble Apex Court at Para 117, in the following manner.

"117. We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer For a (whether District, State or National) or by the Criminal Court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or Criminal Court should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the concerned doctor/hospital. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew's case (supra), otherwise, the policemen will themselves have to face legal action."

14. From the above observations of the Hon'ble Apex Court it is abundantly crystal clear that the court should not mechanically or casually take cognizance or issue summons against the Doctors, but it should take utmost care before passing any order in this regard. Therefore, it is incumbent upon the courts to examine and enquire into the documents produced by the complainant and the averments made in the protest petition or the complaint, and find out those documents are sufficient to take cognizance and issue summons against the Doctors. Otherwise it is the duty of the Courts that it should get the opinion of the Doctor to satisfy itself whether the allegations made against the Doctors fall within the category of cases wherein the conduct of the Doctors fell below that standards of reasonable competent practitioner in the field. Therefore, the learned Magistrates have to bear in mind the above said rulings of the Hon'ble Apex Court and then the factual aspects have to be very carefully dealt with, in such matters.

IN THE HIGH COURT OF KARNATAKA (KALABURAGI BENCH)

Criminal Petition No. 201225/2015

Decided On: 22.04.2016

 Rajeshwari

Vs.

 The State of Karnataka and Ors.

Hon'ble Judges/Coram:

K.N. Phaneendra, J.

Citation: 2017 CRLJ(NOC)17 KAR

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