IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 13..04..2010 CORAM THE HONOURABLE MR. JUSTICE S.NAGAMUTHU Crl. R.C.No.1287 of 2005 Chinnasamy .... Petitioner Vs. 1.Dr.D.Rajendran 2.Dr.R.Vijaya Nirmala 3.The Inspector of Police, Grand Bazar Police Station, Pondicherry. ... Respondents Memorandum of Grounds of Criminal Revision filed under Sections 397 r/w 401 of the Code of Criminal Procedure, 1973 praying to call for the records in S.T.R.No.92 of 2004 on the file of the Chief Judicial Magistrate, Pondicherry and set aside the order of acquittal passed on 18.05.2005 and remit the matter to the trial court for fresh disposal. For petitioner : Mr.Ramasubramaniam for M/s.Ram and Ram For respondent (s): Mr.B.Sriramulu, SC for M/s.R.Rajendran & Annadurai Mr.A.S.Bharathi for RR1 and 2 Public Prosecutor, Puducherry for R3 ORDER
Challenging the order of acquittal of the respondents 1 and 2 dated 18.05.2005 in S.T.R.No.92 of 2004 on the file of the Chief Judicial Magistrate, Pondicherry, the petitioner, who is the de facto complainant in the said case has come forward with this revision. It was on the final report submitted by the 3rd respondent congnizance was taken and the trial was conducted.
2. The facts of the prosecution case in brief are as follows:- The respondents 1 and 2 are registered medical practitioners. The 1st respondent is a surgeon and the 2nd respondent is an anaesthetist. The deceased in this case was one Kanniyakumar. He was admitted at “Ashoka Nursing Home” at Pondicherry on 27.02.2002 for treatment for stone in gall bladder. He was advised to undergo surgery. About 1.30 p.m., he was taken to the operation theatre. The 2nd respondent herein administered general anaesthesia. The 1st respondent was to conduct surgery. But, even before the surgery could be commenced, the said Kanniyakumar collapsed on the table and died. In respect of the death of the deceased, on the complaint by the petitioner, the case was registered by the 3rd respondent under Section 174 of the Code of Criminal Procedure. During investigation, it was found that the death was due to the presence of anaesthetic drug known as sodium thiopental. The blood samples were taken from the dead body and sent for chemical analysis. According to the analyst’s report, there was 14.5 micro gram of thiopental / ml of blood. The Doctor who conducted post-mortem opined that the death was due to the said drug. Alleging that the anaesthetic drug administered was excess in quantity and that it amounts medical negligence, charge sheet was laid by the 3rd respondent against both the 1st respondent (Surgeon) and the 2nd respondent (Anaesthetist). The respondents 1 and 2 denied the accusations. In order to establish the accusations, on the side of the prosecution 12 witnesses were examined and 10 exhibits were marked. P.Ws.1 to 7 have spoken to about the admission of the deceased in the hospital for surgery and the events that happened after the deceased was taken to the operation theatre, the death of the deceased and the other facts.
3. P.W.9 is the Chemical Analyst. On examining the blood samples of the deceased, he gave opinion that 14.5 micro gram of thiopental / ml of blood was found in the blood. He has further opined that if between 16 392 of thiopental micro gram / ml of blood is found in the blood, it would cause the death of the individual. Ex.P.6 is the Analyst’s Report. P.W.8 is the Doctor who conducted autopsy on the body of the deceased. Ex.P.4 is the Post-mortem Certificate. According to his opinion, if thiopental is found between 16 392 micro gram / ml of blood, it is likely to cause the death of an individual. He has opined that the death in this case was due to the presence of 14.5 mcg of thiopental / ml of blood. The other witnesses are the police officials who have spoken to about the registration of the case and investigation.
4. When the respondents/accused were questioned under Section 313 of Cr.P.C. in respect of the incriminating evidences available on record , they denied the same. However, they did not choose to examine any witness on their side. Having considered all the above materials, the trial Court acquitted the respondents 1 and 2. P.W.1, the de facto complaint is aggrieved by the same. That is how, he is now before this Court with this revision.
5. The primary contention of the learned counsel appearing for the revision petitioner is that the evidence of P.Ws.8 & 9 would clearly establish that the death of the deceased was due to administration of excess volume of anaesthetic drug viz., thiopental by the 2nd respondent. Thus, according to him, the prosecution has proved its case beyond reasonable doubt. But, the trial Court has overlooked the evidences of P.Ws.8 & 9 and thus it has committed apparent error in acquitting the respondents, he contended.
6. Per contra, the learned senior counsel appearing for the respondents 1 and 2 would submit that the power of this Court in respect of revision against acquittal is very limited. He would point out that unless it is found that the trial Court has either committed a serious procedural irregularity resulting in miscarriage of justice or that the material evidence has been either overlooked or misread by the trial court, it is not permissible for this Court to reappraise the evidence and to substitute its own conclusion in the place of the conclusion arrived at by the trial court. He would further submit that P.Ws.8 & 9 are not at all specially skilled experts in the field of anaesthesia and therefore, the opinion offered by them cannot be taken into account for any purpose. In this regard, he would rely on a judgement of the Hon’ble Supreme Court in State of Himachal Pradesh v. Jai Lal and others, AIR 1999 SC 3318. He would further add that in so far as the allegations of medical negligence are concerned, it has now been well settled by the Hon’ble Supreme Court in 2005 (6) SCC 1 and 2009(3) SCC 1, wherein the Hon’ble Supreme Court has held that unless the prosecution establishes the gross negligence on the part of the Doctors, they cannot be held guilty for medical negligence so as to convict them under Section 304-A of IPC.
7. Regarding the legal position that the powers of this court in a case of revision against an order of acquittal are very limited, there cannot be any controversy at all. A reference in this regard may be made to a judgement of the Hon’ble Supreme Court in Hydru v. State of Kerala, 2004 (13) SCC 374. Keeping in mind the limitations laid down in Hydru’s case cited supra on the revisional powers of this Court, let me, now, proceed to consider the other contentions.
8. The prosecution relies only on the evidences of P.Ws.8 & 9 to prove the alleged negligence on the part of the respondents 1 and 2. So far as P.W.9 is concerned, he is not a professional Doctor and he is only a Chemical Analyst in terms of Section 45 of the Evidence Act. Since he is an expert only in chemical analysis, he can offer opinion only in respect of the results of the chemical analysis conducted by him. To that extent only, he can be called as an Expert in terms of Section 45 of the Evidence Act. In this case, on conducting chemical analysis on the blood samples of the deceased P.W.9 has offered opinion that there was 14.5 mcg of thiopental / ml of blood. To this extent, his opinion is admissible in evidence under Section 45 of the Evidence Act. The correctness of his opinion is not in dispute and therefore, the same deserves to be accepted. But, not stopping with that he has gone further to offer yet another opinion to say that the presence of 14.5 mcg of thiopental / ml of blood would cause the death of an individual. To offer this opinion, he is not a specially skilled person and therefore he is not an expert. In State of Himichal Pradesh v. Jail Lal and others, AIR 1999 SC 3318, the Hon’ble Supreme Court while considering the scope of Section 45 of the Evidence Act in para 17 has stated as follows:-
“17. Section 45 of the Evidence Act which makes opinion of experts admissible lays down that when the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting, or finger impression are relevant facts. Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject.”
9. Applying the said principles, if the facts of the present case are analysed, as I have already stated, P.W.9 is not an expert to speak about the cause of death. Therefore, the opinion of P.W.9 in this regard is not at all admissible in evidence as he does not satisfy the requirements of Section 45 of the Evidence Act. Thus, the said opinion of P.W.9 is liable to be rejected.
10. Now, coming to the evidence of P.W.8, the learned senior counsel for the accused would submit that though is he a Forensic Expert, he is not an expert in the field of anaesthesia and therefore, the opinion offered by him that the death in this case was due to the presence of 14.5 mcg of thiopental / ml of blood should be rejected.
11. In order to appreciate the said contention , I have gone through the evidence P.W.8 carefully. A close reading of the evidence of P.W.8 would go to show that it is not his opinion at all that the presence of 14.5 mcg of thiopental / ml of blood was the cause for the death of the deceased. What he has said is that since P.W.9 has opined that the presence of 14.5 mcg of thiopental / ml of blood will normally cause the death and since the said volume was found in the blood samples of the deceased, according to him, the death would have occurred because of thiopental. Whether the death in this case was due to the presence of 14.5 mcg of thiopental / ml of blood, it is because P.W.9 has opined so, P.W.8 has only reiterated the same. Thus, a close reading of evidence of P.W.8 would go to show that it is not at all his opinion and instead, it is the opinion of P.W.9 which he has only reiterated. As I have already stated, since P.W.9 himself is not an expert and since his opinion is liable to rejected, consequentially, the opinion of P.W.8 is also liable to be rejected.
12. There is yet another reason to reject the evidence of P.W.8. An exert is expected to give an opinion using his skill in the subject. Then only his evidence will be primary evidence and relevant under Section 45 of the Evidence Act so as to be admitted. If the opinion is borrowed from someone else, his evidence is either hearsay or secondary in nature. It is not his opinion at all. If it is so, his evidence is not relevant as it is not his opinion, but the opinion of someone else. For this reason also, the evidence of P.W.8 is liable to be rejected.
13. The learned senior counsel appearing for the respondents 1 and 2 would further submit that assuming that P.W.8 has offered opinion that the death was due to the presence of 14.5 mcg of thiopental / ml of blood, even then it cannot be given any weightage as he is not an expert in the field of anaesthesia. For this proposition, the learned senior counsel relies on the judgement in Jail Lal’s case cited supra.
14. Now, the question is whether a Doctor, who has got expertise knowledge in Forensic Medicine can be termed as an Expert in the field of Anaesthesia also. The learned counsel for the petitioner would, however, submit that being an expert in Forensic Medicine, he should held to be an expert in all branches of medicine and therefore, he is an expert and thus his evidence is relevant under Section 45 of the Evidence Act. In my considered opinion, this controversy need not be resolved in this case, in view of the conclusion arrived at supra that there is no positive opinion given by P.W.8 out of his expertise knowledge that the death was due to the presence of thiopental.
15. During the course of argument, the learned counsel appearing on either side submitted that they have got no objection for this Court summoning the expert in the field of anaesthesia and to get his opinion based on the medical records available. Since this Court felt that ultimate endeavour is only to find out the truth and render justice, it is necessary to summon such an expert suo motu in exercise of power under Section 391 of the Code of Criminal Procedure. Accordingly, one Dr.T.Venkatachalam, Professor, Depart of Anaesthesia, Madras Medical College and Hospital, Chennai, was summoned and examined as a court witness [C.W.1] on 09.04.2010. On going through the case sheet pertaining to the treatment given to the deceased, post-mortem certificate and the chemical analysis report, C.W.1-Dr.T.Venkatachalam [C.W.1] has deposed, inter alia, as follows:-
“In the case on hand, 14.5 micro gram per ml of thiopental was found which according to me is well within the permissible level of drug to be administered to produce anaesthesia. Going by the level of thiopental found in the blood of the deceased in this case, I am sure that 14.5 micro gram of thiopental / ml found in the blood of the deceased could not have caused the death at all. I differ from the opinion offered by the Doctor who had given opinion on conducting post-mortem in respect of cause of death. In my definite opinion, the cause of death in this case, surely was not due to the presence of 14.5 mcg of thiopental / ml of blood.
16. C.W.1-Doctor is an Anaesthetist having a Master’s Degree in Anaesthesia. He has got more than 28 years of experience in the field of anaesthesia. He claims that roughly for about 2 lacs cases he has given anaesthesia. This opinion could not be contradicted either by the parties or by the prosecution. There can be no doubt that he has satisfied the requirements of Section 45 of the Evidence act as an Expert in the field of Anaesthesia. When his definite opinion is that the cause of death was not due to administration of thiopental , I find no other evidence to hold the respondents 1 and 2 guilty of medical negligence.
17. The learned counsel for the revision petitioner would submit that there is a case pending before the forum under the Consumer Protection Act. In my considered opinion, the standard of proof of medical negligence in criminal case vis-a-vis in civil proceedings are markedly different. In criminal case, it is needless to point out that the proof is required beyond reasonable doubt.
18. In this regard, a reference may usefully be made to the principles stated in Jacob Mathew v. State of Punjab and another, 2005 (6) SCC 1 followed in Martin F. D’Souza v. Mohd. Ishfaq, (2009) 3 SCC 1. The Hon’ble Supreme Court in Jacob Mathew’s case, inter alia, has concluded as follows:-
” ……. …. ….. ……
(5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.
(6) The word ‘gross’ has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be ‘gross’. The expression ‘rash or negligent act’ as occurring in Section 304A of the IPC has to be read as qualified by the word ‘grossly’.
(7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.
(8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.”
19. Here, in this case, the prosecution has failed to prove that the respondents 1 and 2 have administered thiopental in excess volume or that the administration was not made in accordance with the established procedures. Thus, the prosecution has failed to prove that the act of the respondents/accused amounts to gross negligence as held in Jacob Mathew’s case cited supra. The trial Court has given the benefit of doubt in this regard rightly in favour of the respondents 1 and 2.
20. The learned counsel for the petitioner would, however, contend that the respondents 1 and 2 did not chose to let in any evidence in defence to explain as to how the anaesthetic drug was administered and as to how the death occurred. In my considered opinion, under Section 315 of the Code of Criminal Procedure, no adverse presumption could be raised against an accused for his failure to depose as a defence witness. As held in Jacob Mathew’s case cited supra, the principle of res ipsa loquitur does not even in its limited application go to prove the criminal negligence on the part of the accused. Therefore, the said contention of the learned counsel for the petitioner is liable to be rejected.
21. In view of all the above, I do not find any infirmity in the order of acquittal recorded by the trial court warranting interference at the hands of this court.
22. In the result, the criminal revision fails and the same is accordingly dismissed.
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To
1.The Chief Judicial Magistrate, Pondicherry.
2.The Inspector of Police, Grand Bazar Police Station,
Pondicherry