UNIVERSITY INSTITUTE OF LEGAL STUDIES, PANJAB UNIVERSITY,

CHANDIGARH

ACADEMIC MOOT, 2019

BEFORE THE

COURT OF JMIC, CHANDIGARH

CRIMINAL COMPLAINT No…. OF 2019

U.T OF CHANDIGARH ………………………………………………...........PROSECUTION

VERSUS

DR. RAMESH KUMAR …………………………………………………..…RESPONDENT 1

VED BHUSHAN………………………………………………….………….. RESPONDENT 2

BEFORE SUBMISSION TO

HON’BLE JUDICIAL MAGISTRATE IST CLASS, DISTRICT COURT, CHANDIGARH

NAME- RAHUL

ROLL NO- 155/15

CLASS – B.COM LLB [C]

GROUP- C4

MEMORANDUM ON BEHALF OF THE RESPONDENT

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INDEX

S. No. PARTICULARS Page No.

1. List of Abbreviations 3

2. Index of Authorities 4

3. Statement of Jurisdiction 6

4. Statement of Facts 7

5. Statement of Issues 8

6. Summary of Arguments 9

7. Arguments Advanced 10

8. Prayer 15

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LIST OF ABBREVIATIONS

S.NO Abbreviations FULL FORM

1. AIR All Indigo Reporter

2. Anr. Another

3. CompLJ Company Law Journal

4. CHD Chandigarh

5. Govt. Government

6. Hon’ble Honourable

7. i.e. That is

8. SC Supreme Court

9. SCC Supreme Court Cases

10. v. Versus

11. Vol. Volume

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INDEX OF AUTHORITIES

A. Table of Cases

S.NO CASES CITATION PAGE NO

1. Andrews v. Director of Public 1937 A.C. 576 11
Prosecutions
2. Dr.P.B. Desai v. State of Maharashtra AIR 2014 SC 795 11

3. Jacob Mathew vs. State of Punjab 2005 (3) CPJ 9 10

4. Kusum Sharma & Ors v. Batra AIR 2010 SC 1050 12

Hospital and Medical Research centre
& Ors
5. Suresh Gupta v. Government of N.C.T AIR 2004 SC 10,11,12
of Delhi 4091
6. Syad Akbar v. State of Karnataka 1979 CriLJ 1374 13

7. Umesh Chandra Samal v. State of Bihar 2006 (39) AIC 453 10

(Pat)

B. BOOKS

1. Ratanlal & Dhirajlal’s, The Indian Penal Code, 30th Edition, Re- print 2009.

2. K. D. Gaur, A Textbook on the Indian Penal Code, Third Edition, Universal Law
Publishing Co. Pvt. Ltd., 2004.

C. DICTIONARIES REFERRED
1. Black’s Law Dictionary, Ed.8th
2. Judicial Dictionary, J. L.P. Singh & P.K. Majumdar, Ed. 2nd
3. Oxford Dictionary, Ed.3rd
4. Lexion law dictionary (1979), Ed. 3, West Group.

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D. STATUTES REFERRED

1. The Code of Criminal Procedure, 1973.

2. The Indian Penal Code, 1860.

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STATEMENT OF JURISDICTION

The present complaint is lodged by the complainant under section 1901 of the Code of Criminal
Procedure, 1973. The magistrate initiated an issue of process under Section 204. The case is
triable by the Judicial Magistrate First Class, Chandigarh under Section 1772 of the Code of
Criminal Procedure, 1973 as the offence under Section 304-A of the Indian Penal Code has been
commited within the territorial jurisdiction of Chandigarh.

1
190- Cognizance of offences by Magistrates.
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially
empowered in this behalf under sub-section
(2), may take cognizance of any offence—
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has
been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of
such offences as are within his competence to inquire into or try.

2
177-Ordinary place of inquiry and trial.—Every offence shall ordinarily be inquired into and tried by a Court within whose
local jurisdiction it was committed

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STATEMENT OF FACTS

For the sake of brevity and convenience of this Hon’ble Court the facts of the present case
are summarise as follows:

1. That Ms. Sunita, a student of Govt Model School, Sector-14, Chd used to commute
in CTU bus from her home to school.

2. That on 14.12.2018 while she was waiting for the bus outside her school a CTU bus
negligently driven by the driver Ved Bhushan crushed her foot. As a result of the
accident, she sustained injuries for which she was taken to PGI for treatment.

3. That five days after the accident, gangrene developed in her leg and Dr. Ramesh
Kumar was assigned duty to operate upon her leg Immediately.

4. That due to heavy blood loss and gangrene Ms. Sunita died on 22.12.2018
5. Now Father of Sunita, Jeevan ram, has filed a criminal complaint against Dr. Ramesh
Kumar, the respondent under section 304-A, IPC .

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STATEMENT OF ISSUES

I. DR RAMESH KUMAR IS NOT LIABLE FOR CRIMINAL NEGLIGENCE OF

MURDER u/s 304-A

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SUMMARY OF ARGUMENTS

I. DR RAMESH KUMAR IS NOT LIABLE FOR CRIMINAL NEGLIGENCE

OF MURDER U/S 304-A

For proving negligence under the criminal law, the prosecution must prove that there
exists a duty, there was breach of the duty causing death and that breach to be
characterized as gross negligence. To impose criminal liability, under Section 304A, it is
necessary that the death would be direct result of the negligent act of the doctor, and the
act must be proximate and efficient cause without the intervention of another’s
negligence. Dr. Ramesh acted in a professional manner, trying his best to redeem the
patient out of his suffering and in spite of 40 patients pending for surgery; she was put on
priority list among 12 patients of serious open fractures for which he could not be held
criminally liable.

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ARGUMENTS ADVANCED

DOCTOR RAMESH KUMAR IS NOT LIABLE FOR CRIMINAL

NEGLIGENCE OF MURDER U/S 304A.

Section 304A provides punishment for causing death by negligence-

“Whoever causes the death of any person by doing any rash or negligent act
not amounting to culpable homicide, shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine, or with both”.

For proving negligence under the criminal law, the prosecution must prove- that
there exists a duty, there was breach of the duty causing death and that breach to be
characterized as gross negligence.3 In order to constitute negligence, simple lack of
care is not sufficient, the negligence must be of high degree to amount an offence
with element of mens rea4. The Supreme Court in the case of Jacob Mathew vs.
State of Punjab5 that the essential ingredient of mens rea cannot be excluded from
consideration when the charge in a criminal court consists of criminal negligence.6

In the case of Umesh Chandra Samal v. State of Bihar7 the complaint was filed
against the doctor for negligence in treatment of the deceased but the order of
cognizance was quashed as the negligence alleged was not of the nature to fasten
criminal liability on the doctor. In another such case, of Suresh Gupta v.
Government of N.C.T of Delhi8 it was held that the act attributed to the doctor
though could be best described as negligent but not so reckless or grossly negligent
as to make him criminally liable.

3
Malay Kumar Ganguly v. Sukumar Mukherjee, AIR 2010 SC 1162: AIR 2010 SCW 769: 2009 (10) SCALE 675: 2009 (9) SCC
221: 2009 (3) CPJ 17 (SC)
4Bolam v. Friern Hospital, (1957) 2 All ER 118.
5 2005 (3) CPJ 9: 2005 ACJ 1840: 2005 (3) CPR 70: 2005 (1) CTJ 1085:AIR 2005 SC 3180: 2005 (6) SCC 1
6 P.B. Desai v. State of Maharashtra, AIR 2014 SC 795: 2013 (4) CPJ 63: 2013 (12) JT 425: 2013 (11) SCALE 429 (SC).
7 2006 (39) AIC 453 (Pat.).
8 AIR 2004 SC 4091: 2004 Cri LJ 3870: 2004 SCC (Cri) 1785

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A. STANDARD OF NEGLIGENCE

In Suresh Gupta(dr) v Gov of Delhi & Ano9, the Supreme Court held that for
fixing criminal liability of a doctor, the standard of negligence should not merely
be a lack necessary care, attention and skill. The standard of negligence required
to be proved should be so high as can be described as ‘gross negligence’ or
‘recklessness’.

In Dr P B Desai v State of Maharashtra,10 the Supreme Court, reiterated that for

fixing criminal liability on a doctor or surgeon, the standard of negligence
required to be proved should be so high as can be described as ‘gross negligence’
or ‘recklessness’ , as laid down in Dr Suresh Gupta and endorsed in Jacob
Mathew.

In the instant matter, Dr Ramesh kumar was assigned duty to operate upon
Ms.Sunita on 14.12.2018 and due to heavy rush of patients requiring open
fracture surgeries there was delay in her surgery. On average in those days were
50-60 patients admitted in Department of Orthopedics in advance trauma centre
against available 10 beds. Out of these 12 similar serious open fracture surgeries
were pending and only 1 operation table was dedicated to these serious open
fracture surgeries and it is further stated that Ms Sunita can’t be given preference
over these 12 as it would have amounted to sacrificing other 12 patients interest
and in spite of approximately 40 patients were pending for surgery, she was put
on priority list among 12 patients of serious open fracture surgeries. Thus it is
humbly submitted that Dr Ramesh was not negligent in his conduct.
Circumstances were such that he had no other option but to treat those emergency
cases first.

9
AIR 2004 DC 4091, (2004) 6 SCC 422.
10
2013 (11) SCALE 429.

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B.THE RESPONDENT DID THE ACT WITH REASONABLE CARE

The Court in the case of Dr. Suresh Gupta v. Govt. of NCT of Delhi and Anr.11
opined that the carelessness or want of due attention and skill cannot be described
to be reckless or grossly negligent as to make the doctor criminally liable.
Thereby, any act performed in furtherance of lack of care even does not amount to
criminal liability on the medical professionals. Further, Lord Atkin, in case of
Andrews v. Director of Public Prosecutions12 stated that simple lack of care in
imposing criminal liability is not enough as a very high degree of negligence is
required to be proved before commission of an offence is established.

In Kusum Sharma & Ors v Batra Hospital and Medical Research centre & Ors,13
the Supreme Court laid down a set of guidelines for deciding as to whether the
medical professional is guilty of medical negligence or not and advised courts
subordinate to it to keep them in mind while deciding liability of doctors for
professional negligence. They are :

1. Negligence is the breach of a duty exercised 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.
2. Negligence is an essential ingredient of the offence. The negligence to be
established by the prosecution must be culpable or gross and not the
negligence merely based upon an error of judgment.
3. The medical professional is expected to bring 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.
4. A medical practitioner would be liable only where his conduct fell below
that of the standards of a reasonably competent practitioner in his field. V.
5. In the realm of diagnosis and treatment there is scope for genuine
difference of opinion and one professional doctor is clearly not negligent
merely because his conclusion differs from that of other professional
doctor.

11
2004 crilk 3870.
12
[1937] A.C.576.
13
(2010) 3 SCC 480, AIR 2010 SC 1050, 2010(2) SCALE 267

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6. The medical professional is often called upon to adopt a procedure which

involves higher element of risk, but which he honestly believes as
providing greater chances of success for the patient rather than a
procedure involving lesser risk but higher chances of failure. Just because
a professional looking to the gravity of illness has taken higher element of
risk to redeem the patient out of his/her suffering which did not yield the
desired result may not amount to negligence.
7. Negligence cannot be attributed to a doctor so long as he performs his
duties with reasonable skill and competence. Merely because the doctor
chooses one course of action in preference to the other one available, he
would not be liable if the course of action chosen by him was acceptable
to the medical profession.
8. It would not be conducive to the efficiency of the medical profession if no
Doctor could administer medicine without a halter round his neck..
9. The medical professionals are entitled to get protection so long as they
perform their duties with reasonable skill and competence and in the
interest of the patients. The interest and welfare of the patients have to be
paramount for the medical professionals.

The patient was given due medical attention and gangrene could also set in
following severe wound contamination due to the mechanism of injury (crushing)
and place of injury (road side accident).

It is further submitted that the dressing was changed three times and blood was
oozing from the dressing was because of wound.

Thus, considering the quantum of care and precaution taken by Dr Ramesh it

would not amount to criminal negligence as he acted in the best interest of the
patient with the indulgence of standard care in the process.

C.THE ACT WAS DONE IN GOOD FAITH

The concept of good faith in respect of criminal liability operates differently, as

nothing is said to be done or believed in ‘good faith’ which is done or believed
without due care and attention.14

In the instant matter the patient was put on priority list for open surgery among
12 other similar cases and on 21.12.2018 the patient was taken to operation
theatre but since she was haemodynamically unstable, she was transfused 4 units
14
Section 52, Indian Penal Code, 1860

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of blood.The Patient suffered cardio respiratory arrest on 22.12.2018 and

unfortunately, expired. The conduct of Dr. Ramesh in no course fall below the
standard of reasonability Thus person acting under such principle of good faith
cannot be determined under the criminal negligence, otherwise it would vitiate the
relation of a doctor with his patient which is that of uberrimae fidei, that is, of
utmost and abundant confidence.

D. DIFFERENCE IN CIVIL AND CRIMINAL NEGLIGENCE.

The degree of negligence as requisite for the criminal liability is higher than as
required in tort. The act to be imposed under criminal negligence needs to be
gross.The Supreme Court in the case of Syad Akbar v. State of Karnataka 15
opined- “in the criminal proceedings, the persuasion of guilt must amount to such
a moral certainty as convinces the mind of the Court, as a reasonable man,
beyond all reasonable doubt. Where negligence is an essential ingredient of the
offence, the negligence to be established by the prosecution must be gross and not
the negligence merely based upon an error of judgment."

Section 304A of the Indian Penal Code, 1860 while pondering upon the aspect of
“gross negligence”enumerates that the act should be reckless in nature as to
constitute criminal negligence having higher degree, wherein even the element of
mens rea must be shown to exist. Thus considering all the averments made in this
regard, it is thereby established that no such case of criminal rashness or
negligence on the part of Dr. Ramesh can be made.

15
1979 CriLJ 1374

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PRAYER

Therefore in the light of facts of the instant case, written pleadings and
authorities cited, it is humbly prayed before this Hon’ble Court that it may be
pleased to hold, adjudge and declare that:

 The criminal complaint is dismissed

AND/OR

Pass any other order, direction, or relief that this Hon’ble Court may deem
fit in the interests of justice, equity and good conscience.

Sd/-

Counsel for Respondent.

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