A fatal hydrocil operation by an unauthorized physiotherapist led to convictions for culpable homicide and cheating. The court admitted substitute medical evidence, held that the conduct fell outside Section 304A IPC, and dismissed the appeal, affirming the convictions and sentences.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) No.1546 of 2017
Arising Out of PS. Case No.-58 Year-2010 Thana- MANIYARI District- Muzaffarpur
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Dr. Sanat Kumar Son of Late Ganeshi Bhagat, resident of Village- Kerma, P.S.- Kurhni, District- Muzaffarpur.
... ... Appellant/s
Versus The State Of Bihar ... ... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr.Sanjeev Kumar Mishra, Mr. Jitendra Kumar Miss Rashmi, Advocates. For the Respondent/s : Mr. Zeyaul Hoda, APP ======================================================
CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL JUDGMENT
17-07-2019
Appellant, Dr. Sanat Kumar has been found guilty for an offence punishable under Section 304 IPC and sentenced to undergo RI for seven years as well as to pay fine appertaining to Rs. 25,000/- in default thereof, to undergo SI for three months, under Section 420 IPC and sentenced to undergo RI for three years as well as to pay fine of Rs. 10,000/- in default thereof, to undergo SI for one month, additionally with a further direction to run the sentences concurrently, vide judgment of conviction dated 08.05.2017 and order of sentence dated 09.05.2017 passed by 8th Additional Sessions Judge, Muzaffarpur in Sessions Trial No. 417/2011.
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as ‘Sewa Sadan’ situated at village- Mornifas in front of the dead body of his son, Jitendra Pandit, divulging the fact that his son, Jitendra was suffering from hydrocil disease and accordingly, they both visited the clinic of Dr. Sanat who assured that he will get the hydrocil operated upon and for that, also disclosed fee of operation and also directed that the cost of medicines will be borne additionally by him on a disclosure that he got the relevant degree. Accordingly, he paid Rs. 1300/- as operation fee and also borne cost of medicines. Dr. Sanat Kumar performed hydrocil operation. In the evening, he directed to take away Jitendra to his house and during course of stay at his house, his condition deteriorated. On being informed, Dr. Sanat Kumar instructed to bring at his clinic. He began to administer medicine, even then, condition did not improve. Even at his request, he had not permitted to take the patient away for specialised treatment. At last, when the condition of patient became critical, then only, he allowed. Thereafter, he lifted his son on a tempo for SKMCH but during midst of way at Athgarha Ghat, Jitendra succumbed. Then dead body was taken back to the clinic of Dr. Sanat where police came, recorded his Fardbeyan, prepared inquest report, searched the clinic, seized articles having kept therein and for that, seizure list has been
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prepared.
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inquest report, Ext-1/3, Signature of Incharge on Fardbeyan, Ext-1/4, Signature of SHO on marginal statement of Fardbeyan, Ext-1/5, Signature of I.O on inquest report, Ext-3, Signature of PW-5 on seizure list, Ext-3/1, Signature of Police Officer on seizure list, Ext-4, Postmortem report, Ext-4/1, Signature of Doctor, Ext-4/2, Signature of Doctor, Ext-5, Formal FIR.
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not been examined. On non examination of the doctor, postmortem report could not be taken into consideration and that being so, cause of death goes out of legal consideration. Then it has been submitted that PW-1 to PW-4 belong to the same family while admittedly, PW-5 is on inimical terms since before and in the aforesaid background, their evidence could not be relied upon, more particularly, when there happens to be absence on independent witness without any explanation irrespective of the fact that all the witnesses have admitted that at that very moment, there was assemblage of more than 50 persons. So, in its totality, the material available on the record did not justify the finding so recorded by the learned lower court.
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criminal proceeding was already pending since before. So submitted that the instant appeal lacks merit and is fit to be dismissed.
Section 32 . Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant . -- Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:
(1) When it relates to cause of death. -- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in
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cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
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part of evidence is found unshaken. So from the evidence of PW-6, it has become crystal clear that the allegation of the prosecution with regard to operation of the hydrocil is found duly corroborated.
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para-14, he has stated that who informed the police, he is not knowing. When police came, dead body was at the clinic of Dr. Sanat. In para-15, he has stated that they have demanded compensation from Dr. Sanat to a tune of Rs. 1,50,000/-which was not paid by Dr. Sanat. As he failed to pay, on account thereof, this case has been instituted. Then has denied the suggestion that it is not a fact that accused was absconding since before relating to a case having been instituted for an occurrence dated 21.4.2010 and so, the whole story propagated at their end happens to be false out of local politics in revengeful manner.
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declined by saying whether you are the doctor or me. Saline was administered. Ultimately, his son began to gasp whereupon, Dr. Sanat directed to take the patient to Bazar and in a way to SKMCH, he died. Then thereafter, they carried the dead body to the clinic of Dr. Sanat, where police came, recorded his Fardbeyan (Exhibited), prepared inquest report, conducted raid, recovered itmes for which seizure list was prepared. Identified the accused. He had further stated that he was not knowing since before that Dr. Sanat had no medical degree. During crossexamination at para-7, he has shown the distance in between house of Dr. Sanat and he himself and in likewise manner, the distance to his clinic from his house. In para-9, he has stated that he had gone to the clinic of Dr. Sanat only once during course of present episode. He has further stated that because of the fact that Dr. Sanat had not issued any prescription on account thereof, he is unable to file any prescription having in the pen of Dr. Sanat. He had not given any cash-memo relating to purchase of medicines, so he is unable to file the same. Dr. Sanat had not issued any slip relating to acceptance of Rs. 1800/- as fees. In para-10, he has stated that his son had gone to his house on second day. While he was at his house, his condition deteriorated. He took the patient to SKMCH on a tempo but he
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is unable to disclose the name of the driver/owner of the tempo. In para-11, he has stated that after death of Jitendra at Athgarha Ghat, they returned back and came to the clinic of Dr. Sanat and kept the dead body.. He is not remembering at the present moment names of the villagers who have assembled there. In para-12, he has stated that at that very time, Mukhiya, Sarpanch were not present. In para-13, he has stated that during course of Fardbeyan, he has stated that he carried his son over a tempo and when they reached at Athgarha Ghat, he died and then thereafter, returned back to the clinic of Dr. Sanat with dead body of his son. Then he denied the suggestion that no such thing was incorporated in the Fardbeyan. Then he denied the suggestion that Dr. Sanat had not examined the deceased nor he operated him. On account of some sort of undue pressure at the end of the Mukhiya and others, this false case has been instituted.
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examination at para-8, she has stated that they have got no animosity since before with Dr. Sanat. In para-9, she has stated that at the time of operation, she was there. After operation at about 9:00 AM, she took her son to home. After 10:00 O’clock, his condition began to deteriorate and then he was taken back to the clinic of Dr. Sanat as per his instruction. In para-10, she has stated that seeing the condition of her son, she lost her mental equilibrium, so she is unable to disclose the subsequent event in detail. Then, she denied the suggestion that this case has been instituted motivately.
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well as family of deceased Jitendra Pandit who was operated upon by Dr. Sanat on account of suffering from hydrocil. Then thereafter his condition deteriorated. Dr. Sanat had treated subsequently even then his condition deteriorated and, lastly, he was allowed to be taken to a specialized hospital. While being taken to SKMCH, he died in midst of way. Then, thereafter, the dead body was taken back to the clinic of Dr. Sanat where police came. It has also been disclosed at his end that police had conducted raid at the clinic of Dr. Sanat and found different items as per seizure list and for that seizure list was prepared whereupon he had also put his signature (exhibited). Police had recorded his statement. He has further stated that Dr. Sanat happens to be a quack (Jhola-chhap) doctor without having any degree. Identified. During cross-examination he has admitted that Dr. Sanat is on litigating terms with his sister in a criminal prosecution which has been launched at the behest of his sister on account of death of his brother-in-law who was operated upon by the aforesaid Dr. Sanat at an earlier occasion, ultimately costing his life. It has also been admitted by him that he has deposed against the accused at an earlier occasion also in that very case. In para-13, he has stated that the statement of Nagina Pandit was not recorded in his presence. He has further stated
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that conduction of raid, preparation of seizure list, the whole event was completed within two hours. Then has stated that he had met with Jitendra a day prior of his operation. Then has denied the suggestion that he has falsely deposed in the background of animosity.
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clinic of Dr. Sanat. At the time of entrustment of investigation, the O/C had handed over fardbeyan of the informant, inquest report, seizure list, formal FIR. In para-2 he has stated that he had not mentioned during course of inspection about the P.O. in which village it lies. Then at paragraphs-3 and 4 there happens to be contradiction relating to the witnesses Sonelal (PW-1) and Nimbua Devi (PW-3) but surprisingly enough the attention of those PWs was not attracted during course of cross-examination and that being so, those parts are inadmissible in the eye of law as violative of Section 145 of the Evidence Act. In likewise manner, he has deposed that at para-42 of the Case Diary, he has mentioned names of 12 witnesses carrying conjoint statement and again in spite of non-examination of those witnesses, on a question of defence he has stated what was incorporated. Again violative of the principle of Evidence Act. At para-5 he has stated that place of occurrence lies at village-Mornifas. Then has denied the suggestion that he has investigated the case collusively.
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the dead body was taken to the clinic of Dr. Sanat where police was informed by Mukhiya’s husband who managed the whole event subsequently. During cross-examination all the witnesses had admitted that Dr. Sanat is a doctor who used to treat the patient. DW-2 at para-2 has stated that police had conducted raid at the clinic of Dr. Sanat and therefrom articles were seized. He has further admitted that at the time of operation of Jitendra, it was disclosed that some times operation was being conducted. He has further stated that he is not knowing whether Dr. Sanat has got license or not. DW-3 has stated at para-1 of the crossexamination that on account of failure of the operation, Jitendra died. He is unable to say for what he was operated upon. Dr. Sanat is not a fit doctor. DW-4 in para-1 of the crossexamination has stated that he is unable to say what kind of operation was done. Then said that Dr. Sanat had not treated him then corrected he has got no information. DW-5 is a formal witness who has exhibited one certificate issued by National Institute of Health Education and Research, Bihar, Patna but he failed to say whether the aforesaid institution had issued license for treatment nor exhibit-A suggests like so. It is further evident from other documentary evidence (exhibit-B, C,D and E) that happens to be a proof of litigation amongst Rambabu Sahani
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along with Dr. Sanat Kumar, Lalbabu and Haricharan Prasad. This Lalbabu is DW-1.
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appearance pursuance impressing upon an illiterate poor peasant to surrender themselves at their hands and some times like the present one cost their life.
“ 48. Before we embark upon summing up our conclusions on the several issues of law which we have dealt with hereinabove, we are inclined to quote some of the conclusions arrived at by the learned authors of "Errors, Medicine and the Law" (pp. 241-248), (recorded at the end of the book in the chapter titled - 'Conclusion') highlighting the link between moral fault, blame and justice in reference to medical profession and negligence. These are of significance and relevant to the issues before us. Hence we quote :-
(i) The social efficacy of blame and related sanctions in particular cases of deliberate wrongdoings may be a matter of dispute, but their necessity - in principle - from a moral point of view, has been accepted. Distasteful as punishment may be, the social, and possibly moral, need to punish people for wrongdoing, occasionally in a severe fashion, cannot be escaped. A society in which blame is overemphasized may become paralysed. This is not only because such a society will inevitably be backward-looking, but also because fear of blame inhibits the uncluttered exercise of judgment in relations between persons. If we are constantly concerned about whether our actions will be the subject of complaint, and that such complaint is
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likely to lead to legal action or disciplinary proceedings, a relationship of suspicious formality between persons is inevitable. (ibid, pp. 242-243)
(ii) Culpability may attach to the consequence of an error in circumstances where substandard antecedent conduct has been deliberate, and has contributed to the generation of the error or to its outcome. In case of errors, the only failure is a failure defined in terms of the normative standard of what should have been done. There is a tendency to confuse the reasonable person with the error-free person. While nobody can avoid errors on the basis of simply choosing not to make them, people can choose not to commit violations. A violation is culpable. (ibid, p. 245).
(iii) Before the court faced with deciding the cases of professional negligence there are two sets of interests which are at stake : the interests of the plaintiff and the interests of the defendant. A correct balance of these two sets of interests should ensure that tort liability is restricted to those cases where there is a real failure to behave as a reasonably competent practitioner would have behaved. An inappropriate raising of the standard of care threatens this balance. (ibid, p.246). A consequence of encouraging litigation for loss is to persuade the public that all loss encountered in a medical context is the result of the failure of somebody in the system to provide the level of care to which the patient is entitled. The effect of this on the doctor-patient relationship is distorting and will not be to the benefit of the patient in the long run. It is also unjustified to impose on those engaged in medical treatment an undue degree of additional stress and anxiety in the conduct of their profession. Equally, it would be wrong to impose such stress and anxiety on any other person performing a demanding function in society. (ibid, p.247). While expectations from the
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professionals must be realistic and the expected standards attainable, this implies recognition of the nature of ordinary human error and human limitations in the performance of complex tasks. (ibid, p. 247).
(iv) Conviction for any substantial criminal offence requires that the accused person should have acted with a morally blameworthy state of mind. Recklessness and deliberate wrongdoing, are morally blameworthy, but any conduct falling short of that should not be the subject of criminal liability. Common-law systems have traditionally only made negligence the subject of criminal sanction when the level of negligence has been high - a standard traditionally described as gross negligence. In fact, negligence at that level is likely to be indistinguishable from recklessness. (ibid, p.248).
(v) Blame is a powerful weapon. Its inappropriate use distorts tolerant and constructive relations between people. Distinguishing between (a) accidents which are life's misfortune for which nobody is morally responsible, (b) wrongs amounting to culpable conduct and constituting grounds for compensation, and (c) those (i.e. wrongs) calling for punishment on account of being gross or of a very high degree requires and calls for careful, morally sensitive and scientifically informed analysis; else there would be injustice to the larger interest of the society, (ibid, p. 248).
Indiscriminate prosecution of medical professionals for criminal negligence is counterproductive and does no service or good to the society.
is abundantly clear that the accused who was/is not at all
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authorized to treat, even accepting Ext-A, is a physiotherapist indulged in such kind of activity knowingly, intentionally, on account thereof, it could not be a case under Section 304A IPC. That being so, the finding recorded by the learned lower court is affirmed. That being so, this appeal sans merit, accordingly, is dismissed. Appellant is under custody which he will remain till the date of saturation of sentence.
(Aditya Kumar Trivedi, J)
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| AFR/NAFR | AFR |
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| CAV DATE | N/A |
| Uploading Date | 21.07.2019 |
| Transmission Date | 21.07.2019 |
2 issues framed by the court
Was the substitute doctor's evidence concerning the postmortem admissible when the doctors who conducted it were unavailable?
Did the unauthorized physiotherapist's fatal surgical intervention warrant convictions under Sections 304 and 420 IPC rather than treatment under Section 304A IPC?
Colour shows how this judgement treated each authority
Jacob Mathew vs. State of Punjab and OrsRelied on¶66
(2005) 6 SCC 1 · Who else cites this
5 provisions across 2 enactments
Dr. Sanat Kumar
The State Of Bihar
Aditya Kumar Trivedi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
