Judgment

apl764.23

1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ,

NAGPUR BENCH, NAGPUR

CRIMINAL APPLICATION (APL) NO.764 OF 2023

Dr.Dwarkadas s/o Narayandas Rathi,

aged about 69 years, occupation: medical

practitioner, r/o Sarafa Line, Telhara, taluka

Telhara, district Akola. ….. Applicant.

:: V E R S U S ::

1. State of Maharashtra,

through Ministry of Home Affairs,

Mantralaya, Mumbai-32.

2. State of Maharashtra,

through Police Station Officer, Talhara,

Taluka Telhara, District Akola.

3. Rubi Dilip Malekar,

aged about 38 years,

occupation: business,

r/o Civil Line, Washim, District Washim. ….. Non-applicants.

==============================

Shri Mandar Deshpande, Counsel for the applicant.

Shri A.M.Kadukar , APP for the NA Nos.1 and 2/State.

Shri Anup Dhore, Counsel for NA No.3.

==============================

CORAM : URMILA JOSHI-PHALKE, J.

CLOSED ON : 22/01/2026

PRONOUNCED ON : 06/02/2026

JUDGMENT

.....2/- 2026:BHC-NAG:1974-DB

Judgment

apl764.23

2

1. Heard learned counsel Shri Mandar Deshpande for the

applicant, learned APP Shri A.M.Kadukar for the State, and

learned counsel Shri Anup Dhore for the non-applicant No.3.

Admit. Heard finally by consent.

2. By this application, the applicant seeks quashing of the

FIR in connection with Crime No.161/2023 registered under

Sections 304-A and 201 of the IPC and consequent proceeding

arising out of the same bearing SCC No.649/2023.

3. In the present case, informant Ganesh Dinkar Kayande

serving as PSI of Police Station Telhara, District Akola alleges

“medical negligence” on the part of the applicant, who is

doctor by profession, who has allegedly given an “injection” in

Spinal Cord of Dilip Malekar (the deceased) who

unfortunately succumbed to the injection. As per recital of

the FIR, initially, a Murg was filed and an enquiry was

conducted. The investigating officer prepared spot

panchanama, inquest panchanama, and referred the dead

.....3/-

Judgment

apl764.23

3

body of the deceased for postmortem. The investigating

agency has recorded statements of witnesses who were

employed at “Gomati Clinic” and also forwarded samples for

chemical analysis. After receipt of the CA Report, opinion was

given that cause of death of the deceased was, “due to shock

due to pulmonary edema due to trauma to thoracic spinal

cord and coronary artery disease with acute tubular necrosis

of the kidneys". As per the investigation papers, the deceased

had been to the clinic of the applicant where he was injected

and, thereafter, he never regained consciousness and

subsequently succumbed to death on 16.5.2022. During

investigation, it further revealed that the cause of death of the

deceased was because of “pulmonary edema”. It could be the

reaction due to trauma to the thoracic spinal cord due to “an

unknown injection:. Despite treatment papers were

demanded, the applicant has not provided the same. The

Department of Forensic Medicine and Toxicology, Akola by

letter dated 3.11.2022 also intimated cause of death of the

.....4/-

Judgment

apl764.23

4

deceased. The Advisory Committee has accepted the said

cause of death and, thereafter, FIR came to be lodged against

the applicant.

Learned counsel for the applicant further submitted

that the applicant had been to Pune for his personal work and

he came to Shegaon by Maharashtra Express and reached

Telhara at 12:30 pm on 16.5.2022. The applicant came to his

clinic at 2:15 pm and was attending patients. While he was

attending his other patients, he received a call by his sweeper

informing him that a patient, whose name was not known to

him, was sitting on a bench. In consultation with the wife of

the applicant, who is also a medical professional, the said

patient was allowed to take rest on bed kept adjoining the

waiting area. At about 2:45 pm, after taking lunch, the

applicant was examining his patients. He heard a noise of

crowd from patients who were waiting in the waiting area

and it revealed that the person who was taking rest in the

nearby adjoining area of the waiting room had fallen down

.....5/-

Judgment

apl764.23

5

and, therefore, the applicant immediately rushed to him and

examined him and found that he was already dead.

Thereafter, he informed the police. It was found that the said

person had succumbed to death. After doing necessary

formalities, the dead body of the deceased was sent for

postmortem.

It is submitted by learned counsel for the applicant

that as far as the deceased is concerned, he was not at all

treated by the applicant. When he came to the hospital, he

was asked for rest as he was complaining some unrest and,

subsequently, he was found falling on the ground. He also

invited my attention towards the CA Report, which shows that

general and specific chemical testing do not reveal any poison

in Exhibits-1 and 2. Exhibit-1 is skin in a small plastic jar

labelled “skin” and Exhibit-2 is skin in a small plastic jar

labelled “skin” of the deceased. The requisition issued to the

Forensic Science Laboratory dated 18.9.2022 shows that the

said skin pieces were forwarded obtained from the injection

.....6/-

Judgment

apl764.23

6

site for detection of unknown drug poison. The report of the

Associate Professor of the Department of the Medicine and

Toxicology shows that the said cause of death is “due to shock

due to pulmonary edema due to trauma to thoracic spinal

cord and coronary artery disease with acute tubular necrosis

of the kidneys”. He further submitted that statements of

relevant witnesses recorded during the investigation also

nowhere reveal that any treatment was given to the deceased

in the hospital of the applicant. Thus, as far as “negligence” is

concerned, there is absolutely no material to connect the

applicant with the alleged.

He has invited my attention towards statements of

Pawan Ratan Giri, who was serving in the hospital of the

applicant, and Shubham Santosh Samble, who was also

working, who met the applicant for job on that day and was

present in the hospital on 16.5.2022. Thus, he submitted that

as far as the “negligence” at the hands of the applicant is

concerned, there is absolutely no material to show that the

.....7/-

Judgment

apl764.23

7

said injection was administered by the applicant. He

submitted that to make out a case under Section 304 of the

IPC, the complainant cannot merely allege that the applicant

was negligent, but must allege facts constituting a case of

“gross negligence” or an act which was rash on the part of the

doctor so as to cause the death of the patient under their care.

It was further submitted that it is not the case in the

complaint that the applicant was not qualified medical

practitioner or he lacked basic skill to treat patients.

It is further submitted that in fact, the said patient was

treated in the clinic of the applicant, is not substantiated by

any material. On the contrary, the statements of the staff of

the hospital specifically show that the deceased had been to

the clinic of the applicant, but before he was examined, he fell

on the ground and succumbed to death and, therefore, the

contention of the State that the death of the deceased was

caused due to “negligence” on the part of the applicant itself

.....8/-

Judgment

apl764.23

8

is not established. In view of that, the application deserves to

be allowed.

4. Per contra, learned APP for the State strongly opposed

the said contentions and submitted that the wife of the

deceased disclosed that the treatment was given to the

applicant and, therefore, the deceased succumbed to death.

She further stated that due to the wrong treatment at the

hands of the applicant, the death of the deceased was caused,

which is sufficient to attract “negligence”. The investigation

papers further show that despite treatment papers were

demanded from the applicant, which were not provided by

the applicant and, therefore, an adverse inference can be

drawn against the applicant.

5. Learned counsel for the non-applicant No.3 also

endorsed the said contentions and submitted that admittedly,

the death of the deceased is caused in the clinic of the

applicant. The statements of the employees of the clinic of

.....9/-

Judgment

apl764.23

9

the applicant also disclose presence of the deceased in the

said hospital. The cause of death, as per the CA Report and

the expert’s opinion, is due to trauma to thoracic spinal cord

due to an unknown injection. This fact is itself sufficient to

show “negligence” of the applicant in the alleged offence.

6. I have perused the complaint and the entire

investigation papers and statements of various witnesses

recorded during the investigation.

7. Before I proceed with rival contentions and facts, it is

to be ascertained whether a prima facie case is made out

against the applicant to proceed with the trial for an offence

Section 304 of the IPC.

8. Learned counsel for the applicant has placed reliance

on following decisions:

1. Jacob Mathew vs. State of Punjab and anr,

reported in (2005)6 SCC 1;

.....10/-

Judgment

apl764.23

10

2. Dr.Ashok and anr vs. State of Maharashtra,

thr.Police Station Officer and anr, reported in

2020 SCC OnLine Bom 296;

3. Martin F.D’souza vs. Mohd.Ishfaq, reported in

(2009)3 SCC 1, and

9. Criminal Application No.190/2012 decided on

8.9.2023.

10. One of classic English cases which has dealt with

question as to what constitutes “guilt of medical negligence”

and the standard of “reasonableness” is required to be

considered, wherein “Bolam Test” was laid down in the case

of Bolam vs. Friern Hospital Management Committee,

reported in (1957) 1 WLR 582 was considered. By referring

the said English decision, the Three-Judge Bench of the

Hon’ble Apex Court observed in paragraph No.12, as under:

“The term 'negligence' is used for the purpose of

fastening the defendant with liability under the

Civil Law and, at times, under the Criminal Law.

It is contended on behalf of the respondents that

in both the jurisdictions, negligence is negligence,

.....11/-

Judgment

apl764.23

11

and jurisprudentially no distinction can be drawn

between negligence under civil law and

negligence under criminal law”.

The Hon’ble Apex Court further referred the case in

the case of Andrews v. Director of Public Prosecutions,

reported (1937) A.C. 576 and in the case of Riddell vs. Reid,

reported in (1942)2 ALL ER 161, wherein it is observed that,

“a higher degree of negligence has always been demanded in

order to establish a criminal offence than is sufficient to

create civil liability.”

While summoning up, the Hon’ble Apex Court

observed, as under:

“48. We sum up our conclusions as under:

(1) Negligence is the breach of a duty caused by

omission to do something which a reasonable

man guided by those considerations which

ordinarily regulate the conduct of human affairs

would do, or doing something which a prudent

and reasonable man would not do. The definition

.....12/-

Judgment

apl764.23

12

of negligence as given in Law of Torts, Ratanlal &

Dhirajlal (edited by Justice G.P. Singh), referred

to hereinabove, holds good. Negligence becomes

actionable on account of injury resulting from the

act or omission amounting to negligence

attributable to the person sued. The essential

components of negligence are three: “duty”,

“breach” and “resulting damage”.

(2) Negligence in the context of the medical

profession necessarily calls for a treatment with a

difference. To infer rashness or negligence on the

part of a professional, in particular a doctor,

additional considerations apply. A case of

occupational negligence is different from one of

professional negligence. A simple lack of care, an

error of judgment or an accident, is not proof of

negligence on the part of a medical professional.

So long as a doctor follows a practice acceptable

to the medical profession of that day, he cannot

be held liable for negligence merely because a

better alternative course or method of treatment

was also available or simply because a more

skilled doctor would not have chosen to follow or

.....13/-

Judgment

apl764.23

13

resort to that practice or procedure which the

accused followed. When it comes to the failure of

taking precautions, what has to be seen is

whether those precautions were taken which the

ordinary experience of men has found to be

sufficient; a failure to use special or extraordinary

precautions which might have prevented the

particular happening cannot be the standard for

judging the alleged negligence. So also, the

standard of care, while assessing the practice as

adopted, is judged in the light of knowledge

available at the time of the incident, and not at

the date of trial. Similarly, when the charge of

negligence arises out of failure to use some

particular equipment, the charge would fail if the

equipment was not generally available at that

particular time (that is, the time of the incident)

at which it is suggested it should have been used.

(3) A professional may be held liable for

negligence on one of the two findings: either he

was not possessed of the requisite skill which he

professed to have possessed, or, he did not

exercise, with reasonable competence in the

.....14/-

Judgment

apl764.23

14

given case, the skill which he did possess. The

standard to be applied for judging, whether the

person charged has been negligent or not, would

be that of an ordinary competent person

exercising ordinary skill in that profession. It is

not possible for every professional to possess the

highest level of expertise or skills in that branch

which he practices. A highly skilled professional

may be possessed of better qualities, but that

cannot be made the basis or the yardstick for

judging the performance of the professional

proceeded against on indictment of negligence.

(4) The test for determining medical negligence

as laid down in Bolam case, WLR at p. 586 holds

good in its applicability in India. (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.

.....15/-

Judgment

apl764.23

15

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 304-A 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 304-A 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

.....16/-

Judgment

apl764.23

16

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.”

Thus, the “Bolam Test” was considered by the Hon’ble

Apex Court and guidelines are issued by observing that the

said guidelines are to be observed while prosecuting medical

professionals. It is held in the said judgment as under:

“50. As we have noticed hereinabove that the

cases of doctors (surgeons and physicians) being

subjected to criminal prosecution are on an

increase. Sometimes such prosecutions are filed

by private complainants and sometimes by police

on an FIR being lodged and cognizance taken.

The investigating officer and the private

complainant cannot always be supposed to have

knowledge of medical science so as to determine

whether the act of the accused medical

.....17/-

Judgment

apl764.23

17

professional amounts to rash or negligent act

within the domain of criminal law under Section

304-A of IPC. The criminal process once initiated

subjects the medical professional to serious

embarrassment and sometimes harassment. He

has to seek bail to escape arrest, which may or

may not be granted to him. At the end he may be

exonerated by acquittal or discharge but the loss

which he has suffered in his reputation cannot be

compensated by any standards.

51. We may not be understood as holding that

doctors can never be prosecuted for an offence of

which rashness or negligence is an essential

ingredient. All that we are doing is to emphasize

the need for care and caution in the interest of

society; for, the service which the medical

profession renders to human beings is probably

the noblest of all, and hence there is a need for

protecting doctors from frivolous or unjust

prosecutions. Many a complainant prefers

recourse to criminal process as a tool for

pressurizing the medical professional for

extracting uncalled for or unjust compensation.

.....18/-

Judgment

apl764.23

18

Such malicious proceedings have to be guarded

against.

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

.....19/-

Judgment

apl764.23

19

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.

11. Thus, in the case of Jacob Mathew vs. State of Punjab

and anr supra the Hon’ble Apex Court has alarmed about the

tendency of unhappy family members, perhaps irked by

untimely death of their near relative, filing complaints of

gross medical negligence against the medical professionals

hastily, making reckless allegations. The Hon’ble Apex Court

has issued directions which are referred above and also

analyzed the concept of “gross medical negligence” and

.....20/-

Judgment

apl764.23

20

explained, “what it takes to bring the case within the

parameters of Section 304-A of the IPC”.

The Hon’ble Apex Court, as to “gross negligence,”

further held that, “negligence in the context of medical

profession necessarily falls for treatment with difference and

it said that to infer rashness and negligence on the part of a

professional, in particular, a doctor, additional considerations

apply. It is further held that the case of occupational

negligence is different from one of professional negligence, in

the sense that a simple lack of care, an error of judgment or

an accident, is not a proof of negligence so long as the doctor

follows a practice acceptable to medical profession of the day

and till then, a doctor cannot be held liable for negligence

merely because a better alternate course or method of

treatment was also available. It also held that just because a

more skilled doctor would have chosen a particular course of

treatment and the doctor accused has not done so, it would

not amount to any professional medical negligence so as to

.....21/-

Judgment

apl764.23

21

attract the provisions of Section 304-A of the IPC. While

judging the alleged negligence, standard of common man has

to be applied, observed the Hon’ble Apex Court.

12. Thus, basic principle relating to “medical negligence”

known as “Bolam Rule,” which was laid down in the case of

Bolam vs. Friern Hospital Management Committee supra, is

as follows:

“.....where you get a situation which involves the

use of some special skill or competence, then the

test whether there has been negligence or not is

not the test of the man on the top of a Clapham

omnibus, because he has not got this special skill.

The test is the standard of the ordinary skilled

man exercising the professing to have that special

skill. A man need not possess the highest expert

skill at the risk of being found negligent. It is well

established law that it is sufficient if he exercises

the ordinary skills of an ordinary competent man

exercising that particular art”.

.....22/-

Judgment

apl764.23

22

13. The “Bolam Test” has been approved by the Hon’ble

Apex Court in catena of decisions.

14. The degree of skill and care required by a medical

practitioner is so stated in Halsbury's Laws of England, which

is as under:

"The practitioner must bring to his task a

reasonable degree of skill and knowledge, and

must exercise a reasonable degree of care. Neither

the very highest nor a very low degree of care and

competence, judged in the light of the particular

circumstances of each case, is what the law

requires, and a person is not liable in negligence

because someone else of greater skill and

knowledge would have prescribed different

treatment or operated in a different way; nor is he

guilty of negligence if he has acted in accordance

with a practice accepted as proper by a

responsible body of medical men skilled in that

particular art, even though a body of adverse

opinion also existed among medical men”.

.....23/-

Judgment

apl764.23

23

15. Deviation from normal practice is not necessarily

evidence of negligence. Thus, to establish liability on that

basis it must be shown (1) that there is a usual and normal

practice; (2) that the defendant has not adopted it; and (3)

that the course in fact adopted is one no professional man of

ordinary skill would have taken had he been acting with

ordinary care.

16. Thus, to hold a medical practitioner liable, the above

circumstances are to be brought on record. A medical

practitioner is not to be held liable simply because things

went wrong from mischance or misadventure or through an

error of judgment in choosing one reasonable course of

treatment in preference of another. A medical practitioner

would be liable only where his conduct fell below that of the

standards of a reasonably competent practitioner in his field.

For instance, he would be liable if he leaves a surgical gauze

inside the patient after an operation vide Achutrao Haribhau

Khodwa and ors vs. State of Maharashtra and ors, reported in

.....24/-

Judgment

apl764.23

24

AIR 1996 SC 2377 or operates on the wrong part of the body,

and he would be also criminally liable if he operates on

someone for removing an organ for illegitimate trade.

17. Recently, in the case of Neeraj Sud and anr vs.

Jaswinder Singh (Minor) and anr, reported in 2024 SCC

OnLine SC 3069 also the Hon’ble Apex Court observed that,

“it is well recognized that actionable negligence in context of

medical profession involves three constituents (i) duty to

exercise due care; (ii) breach of duty and (iii) consequential

damage. However, a simple lack of care, an error of judgment

or an accident is not sufficient proof of negligence on part of

the medical professional so long as the doctor follows the

acceptable practice of the medical profession in discharge of

his duties. He cannot be held liable for negligence merely

because a better alternative treatment or course of treatment

was available or that more skilled doctors were there who

could have administered better treatment”.

.....25/-

Judgment

apl764.23

25

It has further been observed that, “a medical

professional may be held liable for negligence only when he is

not possessed with the requisite qualification or skill or when

he fails to exercise reasonable skill which he possesses in

giving the treatment”.

18. Keeping in mind the principles laid down in Bolam vs.

Friern Hospital Management Committee supra as well as by

the Hon’ble Apex Court in cases of Jacob Mathew vs. State of

Punjab and anr, and Neeraj Sud and anr vs. Jaswinder Singh

(Minor) and anr supra, I will proceed to evaluate the

allegations made in the complaint and material collected

during the investigation and whether the case has been made

out to proceed with the trial/prosecution under Sections 304-

A and 201 of the IPC.

19. There is no dispute that the deceased died “due to

trauma to thoracic spinal cord due to unknown injection”.

There is no dispute that the complainant does not allege any

.....26/-

Judgment

apl764.23

26

lack of qualification on the part of the applicant or that there

was any lack of skill shown by him. As per the allegations,

the applicant has given an “unknown injection” and due to

reaction of the said injection, the death of the deceased is

caused. It is to be seen, whether this allegation is

substantiated by any material. Admittedly, the investigation

papers show that the deceased had been to the clinic of the

applicant. The statements of two employees working in the

clinic of the applicant show that on 16.5.2022, one employee

Pawan Ratan Giri had been to the clinic of the applicant to

attend his duty at about 2:00 pm. At that time, the wife of

the applicant was instructing some of patients regarding some

exercises and one patient was sleeping in another room.

Therefore, he enquired with another employee Shubham who

joined duty on that day itself and said Shubham disclosed him

that he came from Washim who is sleeping in the said room.

Therefore, he went near the said person and the said person

disclosed him that he is having pain in chest and hands. He

.....27/-

Judgment

apl764.23

27

immediately disclosed to the wife of the applicant who is also

medical practitioner and the wife of the applicant asked him,

“let him rest for some time”. At about 3:00 pm, he again met

said Shubham and Shubham disclosed the applicant that the

patient who came from Washim is not breathing.

Immediately, the applicant and his wife came in the said room

and examined him, but he was succumbed to death.

Thereafter, the applicant has given one chit to him and send

him to the police station. Accordingly, he has handed over the

said chit at the police station.

20. Another statement of Shubham discloses that on

16.5.2022, i.e. on the day of the incident, he joined duty in

the clinic of the applicant. On that day, the applicant came

from Pune at about 11:00 am to 12:00 pm. As there was no

patient, when the applicant came, the applicant went to his

home and again came at 2:00 pm. His statement further

shows that the applicant has checked the patient who came

from Washim and asked him to take rest and, therefore, he

.....28/-

Judgment

apl764.23

28

was taking rest. After some time, he disclosed that he is

having pain in his chest and in hand and after some time, he

fell from the bed and succumbed to death.

21. Thus, the evidence regarding the injection was given

by the applicant is not substantiated by any statements

recorded during the investigation.

22. As far as the statement of the wife of the deceased is

concerned, she was not present along with the deceased at

the relevant time. Her statement only discloses that she

received a phone call from the deceased who disclosed that he

reached in “Gomati Clinic”, owned by the applicant and also

disclosed her that the doctor has given injection to him.

23. Thus, none of statements discloses that the treatment

was given by the applicant to the deceased in the said

hospital. The statements recorded by the investigating agency

are not sufficient to establish that the deceased was treated in

.....29/-

Judgment

apl764.23

29

the hospital of the applicant and it was the applicant who has

given the said injection.

24. As far as the expert’s evidence is concerned,

admittedly, the postmortem report shows that no opinion was

given as to the death and the opinion was reserved. During

the investigation, with the help of medical officer, the skin

piece from injection site for detection of unknown drug

poison and skin from opposite site as control were collected

and forwarded for analysis. The CA Report shows that no

poison is detected on examination of the said skin piece. The

opinion of Associate Professor of the Department of the

Medicine and Toxicology discloses that the death of the

deceased is “due to trauma to thoracic spinal cord due to

unknown injection”.

25. Regarding the alleged incident, the enquiry was also

conducted by the panel of the doctors and panel of doctors

disclosed that the death of the deceased is “due to shock due

.....30/-

Judgment

apl764.23

30

to pulmonary edema due to trauma to thoracic spinal cord

due to unknown injection”. The other significant conditions

noted by Committee is, “coronary artery disease with acute

tubular necrosis of the kidneys.”

26. The report of the Committee is reproduced for further

reference, as under:

"

apl76 4.236 /-589

GABJM Y-२४.०३.२०२३

मिवषय:- डॉ.डी समिती अहवाल.एन.

2J0H G3rw GADHa DkCd2JF CJs/ 2 Coy.ू झाल्याबद्दल चौकशी करणे बाबतtJh.J3iD IN TH 2d/ 3J3O

4 1,-:- १)

प लक्ष्मणराव माळेकर मृत्यू झाल्याबद्दल चौकशी करणे बाबतोली समिती अहवालस स्टेशन तेल्हारा यांचे प लक्ष्मणराव माळेकर मृत्यू झाल्याबद्दल चौकशी करणे बाबतत्र जा जा

. कं. १२४४/

,, GA

.०५/११/२०२२.

२) जा.क्र.g%tv/pkSd’kh/

GADHa CJs/ 2

/७७२८/

,, GA

. १६.१२.२०२२.

उप लक्ष्मणराव माळेकर मृत्यू झाल्याबद्दल चौकशी करणे बाबतरोक्त

4 1,8-fdत

मिवषयान्वये

,

4 1,- 5

.

b B8EJ2 auDHE 9c/TB O/hRJ2J .JMI/ ap GABJM

०५/११/

,L,, F EMAge l

.

, B8EJ2 E3MvHO W 2dH IN TH EGCOH =0HO 2K.JO qDH

. EA2

W 2dH IN TH EGCOHIH EgJ GA

.२१.०२.

२०२३ रोजी समिती अहवाल वैद्यकीय अधिधक्षक काया-लयात घेण्यात आली समिती अहवाल

.

9!9H= 10385%38a%

U3Du B

/ D/ UEOJ ;JDHD C8I/ D5JO ./OJO

.

१)

EA2 z.1j GADHa DkCd2JF CJs/ 2 3C F)e PL R/ GABJM b…

.०५.

२०२२ रोजी समिती अहवाल सकाळी समिती अहवाल १० वा

.

=uCOH GCDBH F 2u= GBAJB ' &

, डॉ. धिड.

एन राठी समिती अहवाल सराफा लाईन

,

तेल्हारा जिजल्हा अकोला येथे आल्याचे

EA2 A9OJF/:JFrB D5JO ./O/

.

२)

EA2 z.1j Aुप लक्ष्मणराव माळेकर मृत्यू झाल्याबद्दल चौकशी करणे बाबतारी समिती अहवाल १२

.

०० ते २

.

०० वा

.

I/ A2Q.JB 76 "7

.

4B 2J0H .JMR.J S 3HBCT./ 76

. धिड.एन

2J0H .JMR.J ayBH .JMR.J EJM=K.JWCJd/ aJ0GFK.JO qD/

.

असे श्री समिती अहवाल

.

T8gC EMOu) IJ`/ .JMR.J D/;H

:3J3JO BCnA qR/

.

३)

EA2 z.1j Aुप लक्ष्मणराव माळेकर मृत्यू झाल्याबद्दल चौकशी करणे बाबतारी समिती अहवाल २

.

(L FJ F/cV= rCCT./ Eu`.JF2 tuaD/D/ RuO/ UE/ UH aFB 2O2 G=2H .JMI/

:3J3JO BC8A qR/

.

४)

EA2 z.1j .JMBJ Aुप लक्ष्मणराव माळेकर मृत्यू झाल्याबद्दल चौकशी करणे बाबतारी समिती अहवाल २

.

०० वा

.

ते २

.

३० वा

.

y.JMBJ TW22JO =CJeE RuO/ qR/

,

X836 5 -83 1ुद्यात

आहे.

असे श्री समिती अहवाल

.

IJ`/ .JMR.J :3J3JB8EJ2 y.JMBH 76

. धिड.

4B 2J0H .JMBJ EA2 rYdJGF).H EJMG=OD/ F 76

.

OaJEdH rB q2JC 2K.JE EJMG=OD/ UE/ BCnA qR/

.

५)

1ुप लक्ष्मणराव माळेकर मृत्यू झाल्याबद्दल चौकशी करणे बाबतारी समिती अहवाल ३

.

०० वा

.

A2Q.JB EA2 rQa aDM=JFrB ;JDH a7D/ qR/O UE/ UH

.

T8gC IJ`/ .JMBH

डॉक्टरांना सांमिगतले डॉ

. धिड.

4B 2J0H .JMBH rYdJDJ OaJEh.JBMO2 rYd A=JFDJ qR/ UC/ EJMG=OD/

,

.....31/-

Judgment

apl764.23

31

६) श्री समिती अहवाल.

T8gC IJ`/ .JMBJ 76

. धिड.

4B 2J0H .JMBH auDHE 9c/TBDJ "I[\H `S 3nB aJ0GFD/ q]d

au^JF/sJO auDHE rYdJD.JO AJ;D tJD/

.

७)

EA2 rYdJI/ 76

. धिड.

4B 2J0H .JMR.J rYdJD.JCT./ aMIBJCJ RuFnB CoOA/R TFGFRX/ABJE aJ0GFDJ

.

८)

EA2 rYdJI/ GABJM bS

.०५.

,L,, 2u:H -.J.F“” TJ_ GFgJ= TJE j. F“” j. CRJGF”JD.

U3uDJ ./P/ TFGFRX/AB 2K.JO qD/ q]d Coy.ू झाल्याबद्दल चौकशी करणे बाबतचे कारण

Opinion Reserved

UE/ A/K.JO qD/

.

9)

EA2 rYdJI/ TFGFRX/AB 2OJMBJ -.J.F“” TJ_ GFgJ= TJE j. F“” j. CRJGF”JD. U uDJ

C/PnB 2JEJ.GB BC8B/ GABJM ,(

.०५.

,L,, 2u:H 2JEJ.GB W.u=TJsJ UC2JFOH ./P/ aJ0GFK.JO

आले.

10) RFSL Amaravati

C/vHD bL

.१०.

,L,, 2u:H GB=eCHO URFJDJCT./

"General and

Specific chemical testing does not reveal any poisionin exhibit No (01) and (02)

असा आहे

.

११)

-.J.F“” TJ_ GFgJ= TJE j. F“” j. CRJGF”JD. U uDJ .JMI/ ap l

.७३५/.108 l:

०३.११.

,L,, WCJd/ rYdJI/ Coy.ू झाल्याबद्दल चौकशी करणे बाबतI/ yF2d ;JDHD WCJd/

IMMEDIATE CAUSE -SHOCK WITH PULMONARY EDEMA

ANTECEDENT CAUSE -DUE TO TRAUMA TOTHORACIC SPINAL

CORD DUE TO UNKNOWN INJECTION

OTHER SIGNIFICANT CONDITIONS `-CORONARY ARTERY DISEASE WITH

ACUTE TUBULAR NECROSIS OF KIDNEYS”

27. Thus, the report on which the reliance has been

placed for registration of the offences also nowhere discloses

that it was the applicant who has injected the deceased. It

only shows that the death of the deceased is caused “due to

the unknown injection”. The Committee has also placed

reliance on the statement of Shubham, whose statement is

only to the extent that the applicant has examined the

deceased and asked him to take rest. However, it nowhere

.....32/-

Judgment

apl764.23

32

discloses that he is having any knowledge that any injection

was injected by the applicant. Thus, neither the report nor

the statements of the witnesses indicates any “negligence” on

the part of the applicant. Therefore, in view of the guidelines

issued by the Hon’ble Apex Court, registering offence under

Section 304-A of the IPC alleging the crime of “gross

negligence” is ruled out. The police ignored the said legal

position and registered the crime, which is a grave in nature.

The investigating agency also ignored the fact that essential

requirements of this offence is of causing death with intention

or knowledge and both these requirements are absent. It is

not anybody’s case that the applicant did some acts with an

intention to cause death or such bodily injury as is likely to

cause death or with knowledge that the applicant’s act is

likely to cause death. Even, The Expert Committee’s Report

does not extend any helping hand to substantiate the

allegations of “negligence” to prove the same.

.....33/-

Judgment

apl764.23

33

28. As held in various judgments referred above, it shows

that a fine balance between upholding and preserving the

faith that citizens have on the medical profession and on the

treatment of doctors and the evidence is required prima facie

to establish “gross negligence” to attract the offence under

Section 304-A of the IPC.

29. Thus, in view of the settled principles, a medical

practitioner is not to be held liable simply because things

went wrong from mischance or misadventure or through an

error of judgment in choosing one reasonable course of

treatment in preference of another. A medical practitioner

would be liable only where his conduct fell below that of the

standards of a reasonably competent practitioner in his field.

The standard of care has to be judged in the light of

knowledge available at the time of the incident and not at the

time of the trial. There is a difference between “simple

negligence” and “gross negligence,” which is explained by the

Hon’ble Apex Court in the case of Jacob Mathew vs. State of

.....34/-

Judgment

apl764.23

34

Punjab and anr supra. It must be remembered that

sometimes despite their best efforts, the treatment for doctor

fails and sometimes despite efforts of a surgeon, patient dies.

However, that does not mean that the doctor/surgeon must be

held to be guilty of “medical negligence”, unless there is some

strong evidence to suggest that he has not taken due care and

caution by treating the patients.

30. On the facts of the present particular case, I am of

opinion that the evidence collected during the investigation is

not sufficient to hold the applicant guilty for “medical

negligence”.

31. In this view of the matter, the application deserves to

be allowed as per order below:

ORDER

(1) The Criminal Application is allowed.

.....35/-

Judgment

apl764.23

35

(2) The FIR in connection with Crime No.161/2023 registered

under Sections 304-A and 201 of the IPC and consequent

proceeding arising out of the same bearing SCC No.649/2023

are hereby quashed and set aside to the extent of applicant

Dr.Dwarkadas s/o Narayandas Rathi.

Application stands disposed of.

(URMILA JOSHI-PHALKE, J.)

!! BrWankhede !!

...../-