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

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Supreme Court: Hospital which is giving free medical treatment to some patients and charging others for providing services are liable under consumer protection Act

While evaluating the submission which has been urged by Mr R S

Suri, it is necessary, at the outset, to have regard to the principles which

have been laid down in the judgment of this Court in Indian Medical

Association. In the judgment of this Court, the provisions of Section 2(1)

(o) of the Act fell for interpretation. Section 2(1)(o) provides as follows:

“"service" means service of any description which is

made available to the potential users and includes

the provision of facilities in connection with banking,

financing, insurance, transport, processing, supply

of electrical or other energy, board or lodging or

both, [housing construction], entertainment,

amusement or the purveying of news or other

information, but does not include rendering of any

service free of charge or under a contract of

personal service;"

10 Interpreting the above provision, a three judge Bench of this Court

held that it is only where a hospital provides medical services free of

charge across the board to all patients that it would stand outside the

purview of the Act. The Court held that a hospital which renders free

services to a certain category of patients, while providing for services

which are charged to the bulk of others would not lie outside the purview of

the jurisdiction of the consumer fora. This principle is evident from the

following extract from the decision of this Court:

“43...The third category of doctors and hospitals do provide

free service to some of the patients belonging to the poor

class but the bulk of the service is rendered to the patients on

payment basis. The expenses incurred for providing free

service are met out of the income from the service rendered

to the paying patients. The service rendered by such doctors

and hospitals to paying patients undoubtedly fall within the

ambit of Section 2(1) (o) of the Act.”

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No 2823 of 2020

Union of India Vs  N K Srivasta 

Dr Dhananjaya Y Chandrachud, J

Dated:July 23, 2020

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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 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 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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Whether ‘Mentally challenged’ man can donate kidney to sibling?

Petitioner no. 3 is adjudged as mentally challenged and, in view of section 9(1-C) there is prohibition for removal of organs or tissues. Section 9(1-C) of the Act reads thus:

9. Restrictions on removal and transplantation of [human organs or tissues or both]

(1-C) No human organs or tissues or both shall be removed from the body of a mentally challenged person before his death for the purpose of transplantation.

Explanation - For the purpose of this subsection,-

(i) the expression “mentally challenged person” includes a person with mental illness or mental retardation, as the case may be;

(ii) the expression “mental illness” includes dementia, schizophrenia and such other mental condition that makes a person intellectually disabled;

(iii) the expression “mental retardation” shall have the same meaning as assigned to it in clause(r) of section 2 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996)]

As has been recorded above, the principles in Common Law jurisdiction based upon “best interest test” cannot be made applicable in view of specific provisions in Transplantation of Human Organs and Tissues Act, 1994. Section 2(f) of the Act defines donor as the person not less than eighteen years of age, who voluntarily authorises removal of his organ or tissues. In the instant matter, petitioner no. 3 is not an individual who is in a position to voluntarily authorise removal of his organ or tissues. Apart from this, section 9(1-C) puts bar on removal of human organ or tissues or both from body of a mentally challenged person. In the instant matter, petitioner no. 3 is adjudged as suffering from mental retardation and he is reported to be a person not capable of making decision for himself. We, with a view to find out whether petitioner no. 3 has a minimum level of understanding, interviewed him by calling him in chamber in presence of the counsel of both the sides. We have noticed that petitioner no. 3 even was not in a position to understand the questions put to him and is incapable of understanding the consequences of his act. His decision making power is severely impaired and we do not doubt the opinion of the Consultant Psychiatrist.

20. The restriction on removal and transplantation of human organs or tissues or both contained in sub-section (1-C) of section 9 of the Act in respect of mentally challenged person is an absolute prohibition. The Statutory provision is couched in negative language and as such shall have to be construed mandatory. In this connection reference can be made to the judgment of the Honourable Supreme Court in the matter of Vijay Narayan Thatte v. State of Maharashtra reported in(2009) 9 SCC 92 The proviso to section 6 of the Land Acquisition Act which puts prohibition for making a declaration under section 6 after expiry of one year from the date of publication of notification was a matter of consideration before the Court. The Honourable Supreme Court recorded that since the statute is couched in negative language, it is referred as peremptory and mandatory in nature. While interpreting the negative prohibition, in paragraphs 5 to 16 of the judgment, the Honourable Supreme Court has observed thus:

“5. As stated by Crawford:

“263. Affirmative, negative, prohibitory and exclusive words.- Prohibitive or negative words can rarely, if ever, be directory…. And this is so, even though the statute provides no penalty for disobedience.”

(See Crawford: Statutory Construction, p. 523; see also in this connectionHaridwar Singh v. Bagun Sumbrui, SCC p. 895, para 13, Lachmi Narain v. Union of India; Mannalal Khetan v. Kedar Nath Khetan).
In the High Court of Bombay at Aurangabad

(Before R.M Borde and Vibha Kankanwadi, JJ.)

Ganpatrao S/o Sambhajirao Pawar. v. State of Maharashtra 

Writ Petition No. 13918 of 2017

Decided on December 21, 2017,
Citation: 2017 SCC OnLine Bom 9419, 

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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 time of death can be ascertained by presence or absence of food in stomach of deceased?

 Now, we shall deal with the other aspect of the argument advanced on behalf of the Appellants i.e. in relation to uncertainty in the time of occurrence as well as death of the deceased, with reference to expert evidence. The contention is that as per the statement of PW-8, they had 'Bhel' just before the incident. However, according to the medical evidence, there were no food particles in the stomach of the deceased. Therefore, the version of PW-8 is falsified by the evidence of PW-10, more particularly, wherein she has stated that she did not find any food particles in the intestine of the deceased. According to the learned Counsel for the Appellants, this causes a serious doubt on the very basis of the prosecution story. This argument appears to be of some significance at the first brush, but when examined in depth in light of the entire evidence, it clearly lacks merit.

9. The presence or absence of food at the time of post-mortem in relation to the time of death is based on various factors and circumstances such as the type and nature of the food consumed, the time of taking the meal, the age of the person concerned and power and capacity of the person to digest the food. In the present case, though PW-8 has stated that he had 'Bhel' with the deceased just before the incident, there is no evidence about the exact time when the meals were taken or the quantity of 'Bhel' consumed by the deceased. Judging the time of death from the contents of the stomach, may not always be the determinative test. It will require due corroboration from other evidence. If the prosecution is able to prove its case beyond reasonable doubt and cumulatively, the evidence of the prosecution, including the time of death, is proved beyond reasonable doubt and the same points towards the guilt of the accused, then it may not be appropriate for the court to wholly reject the case of the prosecution and to determine the time of death with reference to the stomach contents of the deceased. Even in Modi's Jurisprudence, it has been recorded as under:

... The state of the contents of the stomach found at the time of medical examination is not a safe guide for determining the time of the occurrence because that would be a matter of speculation, in the absence of reliable evidence on the question as to when the deceased had his last meal and what that meal consisted of.

Where there is positive direct evidence about the time of occurrence, it is not open to the court to speculate about the time of occurrence by the presence of faecal matter in the intestine. The question of time of death of the victim should not be decided only by taking into consideration the state of food in the stomach. That may be a factor which should be considered along with other evidence, but that fact alone cannot be decisive.

10. This Court in a catena of cases has stated the dictum that medical opinion is admissible in evidence like all other types of evidence and there is no hard-and-fast Rule with regard to appreciation of medical evidence. It is not to be treated as sacrosanct in its absolute terms. Agreeing with the view expressed in Modi's book on Medical Jurisprudence and Toxicology, this Court recorded that so far as the food contents are concerned, they remain for long hours in the stomach and the duration thereof depends upon various other factors.

11. Further, in Malay Kumar Ganguly v. Sukumar Mukherjee MANU/SC/1416/2009 : AIR 2010 SC 1162, it has been held by this Court that the opinion could be admitted or denied. Whether such evidence could be admitted or how much weight should be given thereto, lies within the domain of the court.

12. It is clear from the depositions of the prosecution witnesses, viz., PW-5 and PW-8 which corroborates with the deposition of PW-10 that the injuries were sustained by a sharp cutting object and not by hard and blunt object. Further, the plea raised by learned Counsel for the Appellants with regard to non-founding of food particles in the intestine of the deceased is of no basis as the digestion varies with different person even with same material, and sometimes even with the same person at different times. With incomplete digestion, no reliable opinion can be given on a medical basis. In fact, there is no positive evidence that the deceased had 'Bhel' along with others. If the period of digestion is six hours, the food will be in semi-digested stage upto 2 to 2½ hours and if someone takes food then it remains in stomach for half an hour and then it goes to the intestine. Even if it be taken that the deceased had 'Bhel' along with others and five minutes thereafter the incident started in which he succumbed to his injuries, the food will not be converted into semi-digested state and the doctor will not find any food particles in the intestine. The digestion of food is one of the important data which guide the medical officer in arriving at an opinion as to the time of death. This is possible on internal examination.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 1962 of 2011 and 604 of 2012

Decided On: 03.08.2017

Sanjay Khanderao Wadane Vs. State of Maharashtra

Hon'ble Judges/Coram:

A.K. Sikri and R.K. Agrawal, JJ.

Citation:(2017) 11 SCC 842.

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Whether wife can be permitted to operate bank account of her husband if he is in COMA?

The wife of a retired general manager with a PSU, who is comatose for over a month, has moved the Bombay high court to be allowed to access his bank accounts.

Philomina, wife of Leo Lobo (63), has sought to be appointed as his guardian—in the absence of specific legal provisions to deal with the rights of such patients— so that she can use his account to fund his medical care. On Wednesday, the Central government counsel, Advait Sethna, said first a sub-divisional magistrate's report must be called for to verify the medical certificate and her claim.

The HC then immediately directed a sub-divisional magistrate from Thane Collectorate to visit the Lobos' Nerul house and prepare a report on Leo's health condition by Friday. Neurologists from Apollo Hospital in Navi Mumbai had certified that Leo Lobo was suffering from 'malignant MCA territory infarction of the brain' and was 'in a persistent vegetative state'.

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Whether Medical witness who performs post-mortem is witness of fact?

 On perusal of the record, it has further been noticed by us that there was six days' delay in lodging the FIR which remained unexplained throughout the trial and in the appeal before the High Court. One last fact which is imperative and crucial to be mentioned here is that opinion on the cause of injuries was neither mentioned by doctor PW-6 in his deposition, nor in post-mortem report. In criminal cases pertaining to offences against human body, medical evidence has decisive role to play. A medical witness who performs a post-mortem examination is a witness of fact though he also gives an opinion on certain aspects of the case. This proposition of law has been stated by this Court in Smt. Nagindra Bala Mitraand v. Sunil Chandra Roy, 1960 SCR (3) 1, as follows:

“The value of a medical witness is not merely a check upon the testimony of eye witnesses; it is also independent testimony because it may establish certain facts quite apart from the other oral evidence. If a person is shot at a close range, the mark of tattooing found by the medical witness would draw that the range was small, quite apart from any other opinion of his. Similarly, fractures of bones, depth and size of the wounds would show the nature of the weapon used. It is wrong to say that it is only opinion evidence; it is often direct evidence of the facts found upon the victim's person.”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

(Before Pinaki Chandra Ghose and Rohinton Fali Nariman, JJ.)

Machindra v.

Sajjan Galpha Rankhamb & Ors

Criminal Appeal No. 1794 of 2013

Decided on April 19, 2017

Citation:2017 SCC ONLINE 443

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Whether prosecution case can be doubted on ground that victim was not taken to nearest hospital?

 On behalf of the accused/appellants Shri B.H.
Marlapalle, learned senior counsel argued that had the
incident taken place in the manner suggested by the
prosecution, the injured would have been taken to nearest
hospital available was at Chellur but he was taken to hospital
at Shimoga which creates doubt as to the place of the incident.
We find no force in the argument for the reason that there is
nothing on record to show that there were facilities to treat the
critically injured patient at Chellur. It has come on record
that the injured was in a critical condition and he was
unconscious when admitted in Shimoga hospital. Merely for
the reason that one doctor used to be posted at Chellur does
not mean that there were facilities to treat the patient of
critical condition, as such, in our opinion, there appears
nothing unusual in taking the injured to the hospital where
the injured could be given better treatment and time is not
lost.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 435 OF 2006
M. G. Eshwarappa and others 
V
State of Karnataka.
Citation:AIR 2017 SC1197

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Compulsory Licensing of Pharmaceuticals : Socio-Legal Impact

Presentation is below : 

Compulsory Licensing of Pharmaceuticals : Socio-Legal Impact from Harshal Morwale

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When charge should not be framed against doctor under PCPNDT ACT?

   

  Considering the object of the Act and the
contents of form “F” which are required to be filled up
and maintained by the
Gynacologist/Radiologist/registered medical
practitioner performing the diagnostic procedures, it
can not be disputed that the filling up and
maintenance of form “F” is mandatory. However, in
the present case, the point is whether a bonafide
mistake or deficiency on the part of the Gynacologist
or Radiologist or registered medical practitioner can
be said to be of such a nature that the concerned
Gynacologist or Radiologist or registered medical
practitioner is liable to face prosecution.
10. In the complaint filed by the Appropriate
Authority, the only allegations are that there is some
deficiency in maintaining “F” forms in respect of some
patients. There is no averment in the complaint that
the omission in the “F” forms is deliberate or the

accused is indulging in conducting pre-natal
diagnostic techniques for determination of sex of
foetus.
11. More-over, as recorded earlier, the
deficiencies as mentioned in the complaint, in-fact do
not exist. In some of the “F” forms, though the
signature of the applicant is not found on “F” form, it
is not disputed by the Appropriate Authority that the
'F' forms are submitted through and in the name of
the clinic which is registered in the name of the
applicant. On some of the “F” forms, the signature of
the applicant is found below the declaration of Doctor
conducting Ultra Sonography. The accusations are
that the applicant has not signed below column No.
19 where also he is required to sign. The form “F” is
a composite form and below column No. 19 is the
declaration which is required to be signed by the
patient and below it is the declaration which is
required to be signed by the Doctor conducting Ultra
sonography. As the signature of the applicant is
found on most of the forms below the declaration,

only because the applicant has not signed below
column No. 19, it can not be said that because of the
omission, he is liable to face prosecution.
12. After examining the matter, I find that the
complainant has not been able to establish on record
that the charges for the offences mentioned in the
complaint are required to be framed against the
applicant and that the applicant is liable to be
prosecuted for those offences.                                                                              
 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 BENCH AT AURANGABAD
 CRIMINAL APPLICATION NO. 2574 OF 2014
Dr. Udaysingh S/o Mansingh Patil

V
 The State of Maharashtra

 CORAM : Z.A.HAQ, J.
 DATED : 8th DECEMBER, 2016
Citation: 2017(2) MHLJ 232,2017 ALLMR(CRI)23

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How to prove policy of hospital in case of medical negligence?

To prove the policy alleged by Defendant No. 1 he deposed in his cross examination that there were 4 or 5 patients' files who were admitted and managed by Defendant No. 2 independently but under the name of Defendant No. 1 because of the hospital's policy. He has not produced any of those files also. His cross examination shows no recollection of any patients admitted to BH by other Surgeons in his name also. Similarly his cross examination shows that he was not aware of any other patient admitted by any other Surgeons independently, but in his name.

45. In fact in support of the case of a policy hitherto unknown and un- shown, made out by the Defendant No. 1, he has not produced evidence of any illustration of any other Doctor who was similarly shown as a honorary Surgeon merely on paper when another junior Doctor or assistant Surgeon independently admitted and treated any other patient.

46. It is a salutary principle of the law of evidence that a person who alleges a particular fact to his knowledge has to prove that fact under Section 106 of the Indian Evidence Act. Defendant No. 1 has alleged the fact of the policy of BH. He has not proved any such policy by producing the policy itself or the rules and Regulations, the letters that he claims were written to him by BH with regard to the policy or even sought to prove the policy by way of illustration.

IN THE HIGH COURT OF BOMBAY

Suit No. 1101 of 1989

Decided On: 02.09.2011

Padam Chandra Singhi and Ors.
Vs.
Dr. P.B. Desai and Ors.

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