MOOT COURT, PAPER CODE- LM 409

VP 20
SOA National Institute of Law (SNIL)
VISWANATH PASAYAT MEMORIAL STATE LEVEL MOOT COURT
COMPETITION- 2021
IN THE MATTER OF:-
An appeal under the ambit of Section 374(2) of Criminal Procedure Code.
AND
IN THE MATTER OF:-
Conviction under the Ambit of Section 304A of Indian Penal Code, 1860, read with
Section34 of Indian Penal Code, 1860.
AND
IN THE MATTER OF:-
Conviction under the Ambit of Section 316 of Indian Penal Code, 1860, read with
Section34 of Indian Penal Code, 1860.
AND
IN THE MATTER OF:-
Conviction under the Ambit of Section 34 of Indian Penal Code, 1860, read with
Section304A& 316 of Indian Penal Code, 1860.
AND
IN THE MATTER OF:-
DR. LATA SAHOO AND DR. RADHA SAHOO………APPELLANT
-VERSUS-
STATE OF ODISHA AND JEMAMANI MISHRA…………RESPONDENT

HUMBLE SUBMISSIONS BEFORE THE HON’BLE CHIEF JUSTICE AND

HIS COMPANION JUDGES OF THE HON’BLE HIGH COURT OF ODISHA

THE HUMBLE SUBMISISON OF THE APPELLANT ABOVE NAMED

MEMORANDUM ON BEHALF OF THE APPELLANT

MEMORANDUM ON BEHALF OF APPELLANT

Page|i
 VISWANATH PASAYAT MEMORIAL STAE LEVEL MOOT COURT
COMPETITON- 2021

TABLE OF CONTENTS

LIST OF ABBREVIATIONS………………………………………………………………..iii
INDEX OF AUTHORITIES…………………………………………………………………iv
I. LIST OF CASES…………………………………………………………………………….iv
II. LIST OF STATUTES………………………………………………………………………iv
III. LIST OF BOOKS CITED………………………………………………………………….iv
IV. LIST OF ONLINE DATABASES………………………………………………………….v
STATEMENT OF JURISDICTION…………………………………………………………vi
STATEMENT OF FACTS………………………………………………………………..vii-xi
ISSUES RAISED……………………………………………………………………………...xii
SUMMARY OF ARGUMENTS…………………………………………………………..xiii-xiv
ARGUMENTS ADVANCED
I. WHETHER THE ACCUSED CAN BE HELD CRIMINALLY LIABLE UNDER THE
AMBIT OF SECTION 316 OF INDIAN PENAL CODE,1860, OR NOT?...........................1-2
II. WHETHER THE ACCUSED PERSONS CAN BE HELD LIABLE UNDER THE AMBIT
OF SECTION 304 A OF INDIAN PENAL CODE,1860, OR NOT?....................................3-9
III. WHETHER THE ACCUSED PERSONS CAN BE HELD CRIMINALLY LIABLE
UNDER SECTION 34 OF INDIAN PENAL CODE,1860, OR NOT?................................10-11
PRAYER……………………………………………………………………………………..12

MEMORANDUM ON BEHALF OF APPELLANT

P a g e | ii
 VISWANATH PASAYAT MEMORIAL STAE LEVEL MOOT COURT
COMPETITON- 2021

LIST OF ABBREVIATIONS

SL. NO. ABBREVIATIONS FULL FORMS

1. & And
2. @ Alias
3. AIR All India Reporter
4. Anr. Another
5. Art. Article
6. Cr. LJ Criminal Law Journal
7. Cri. Criminal
8. CrPC Code of Criminal Procedure
9. IPC,1860, Indian Penal Code,1860,
10. JCC Journal of Criminal Cases
11. Ors. Others
12. PW Prosecution Witness
13. r/w Read/with
14. SC Supreme Court
15. SCC Supreme Court Cases
16. SCR Supreme Court Reporter
17. Sec. Section
18. U/s Under section
19. v. Versus

MEMORANDUM ON BEHALF OF APPELLANT

P a g e | iii
 VISWANATH PASAYAT MEMORIAL STAE LEVEL MOOT COURT
COMPETITON- 2021

INDEX OF AUTHORITIES

I. LIST OF CASES
SL. NO. NAME OF THE CASE CITATION PAGE NO.
1. Murugan v State 2

2. Martin F. D’Souza v Mohd. 2009 3 SCC 1 4

Ishfaq
3. Jacob Mathew vs State of 2005(3) Criminal Court 5
Punjab &Anr. cases 0858 S.C
4. Anjana Agnihotri vs. the State of 2020 SC criminal appeal no 8
Haryana 770 of 2009
5. Lala Ram vs State of Rajasthan 2003(3) Criminal Court 9
cases (0212) Rajasthan
6. Krishna Kanta Das vs State of 2005(3) criminal court 9
Assam cases 0272 Guwahati
7. Jagan Gope vs State of West CRA 389 of 2012 HC Cal 11
Bengal 2019

II. LIST OF STATUTES

SL. NO. STATUTES PAGE NO.
1. The Code of Criminal Procedure, 1973. Passim
2. Indian Penal Code,1860, (45 of 1860). Passim
3. Indian Evidence Act, 1872. Passim

III. LIST OF BOOKS

SL. NO. BOOKS PAGE NO.
1. K.D. Gaur, Indian Penal Code,1860,, (6th ed. 2016). Passim
2. N.D. Basu’s, Commentary on Indian Penal Code,1860,, (Ashoka Passim
Law House, 11th Edition).
3. Justice C.K. Thakker, Law of Evidence (Whytes & Co., 3rd Passim
Edition).
4. Ratanlal & Dhirajlala, The Code of Criminal Procedure (23rd Passim
Edition).

MEMORANDUM ON BEHALF OF APPELLANT

P a g e | iv
 VISWANATH PASAYAT MEMORIAL STAE LEVEL MOOT COURT
COMPETITON- 2021

IV. LIST OF ONLINE DATABASES

SL. NO. ONLINE DATABASES

1. Westlaw (www.westlawindia.com)
2. Manupatra (www.manupatra.com)
3. SCC Online (www.scconline.in)
4. The Judgement Information System (http://www.judis.nic.in) (Supreme Court of
India Official)

MEMORANDUM ON BEHALF OF APPELLANT

Page|v
 VISWANATH PASAYAT MEMORIAL STAE LEVEL MOOT COURT
COMPETITON- 2021

STATEMENT OF JURISDICTION

The Hon’ble High Court has Jurisdiction to hear the instant appeal under Section 374(2) of
Code of Criminal Procedure, 1973 which reads as follows:

Section 374: Appeals from convictions

(1) Any person convicted on a trial held by a High Court in its extraordinary original criminal
jurisdiction may appeal to the Supreme Court.

(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge
or on a trial held by any other Court in which a sentence of imprisonment for more than seven
years 2 has been passed against him or against any other person convicted at the same trial,
may appeal to the High Court.

(3) Save as otherwise provided in sub- section (2), any person,-

(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or

Magistrate of the first class, or of the second class, or

(b) sentenced under section 325, or

(c) in respect of whom an order has been made or a sentence has been passed under section 360
by any Magistrate, may appeal to the Court of Session.

THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS AND

ARGUMENTS IN THE INSTANT CASE.

MEMORANDUM ON BEHALF OF APPELLANT

P a g e | vi
 VISWANATH PASAYAT MEMORIAL STAE LEVEL MOOT COURT
COMPETITON- 2021

STATEMENT OF FACTS

[¶.1] Pritisikha Mishra, aged 30 Years, daughter of Jemamani Mishra was married three years
back to one Sudhansu Panda who is having an unstable business of ready-made garments. Ms.
Pritisikha was working as an Asst. Manager in Nayapalli Branch of the State Bank of India.
Subsequently, she became pregnant and had gone to Bright Health Nursing Home owned by
Dr. Lata Sahoo, who is a registered medical practitioner, for her regular checkup and treatment
on 20.11.2020. Dr. Sahoo prescribed her certain medicines and asked her to undergo certain
tests conducted at Sahoo Labs situated in the premises of the said Nursing Home whereupon
all the pathological tests of Ms. Pritisikha were done at the Sahoo Labs.

[¶.2] In the morning of 13.06.2021, Ms. Pritisikha and her mother had rushed to Dr. Lata on
account of some complications relating to pregnancy and she gave her some medicines and
prescribed her certain tests. Again, the tests were conducted at Sahoo Lab after taking the blood
sample of Ms. Pritisikha. Since the doctor had prescribed Dengue test, Ms. Pritisikha was quite
perplexed and went to the aforesaid lab in the evening whereupon she was told that the Dengue
test had turned out to be negative, however, no report was given to her and when she again
requested the doctor sitting in the lab (Dr. Radha Sahoo, daughter of Dr. Lata Sahoo) to repeat
the Dengue test since she was pregnant for last seven months and was suffering from fever,
Dr. Radha became angry and abused her and her mother, whereafter both of them were forcibly
ousted from the said premises. (CCTV Footage regarding this incident that happened in the lab
was presented to the Sessions Court by the Prosecution.)

[¶.3] Thereafter, they went to meet Dr. Lata whereupon they were told that everything was
fine. However, Ms. Jemamani requested the doctor to get the Dengue test of her daughter
conducted again since she was suffering from fever for a long time. Upon hearing this, Dr.
Lata threatened both of them and called her staff who thrown them out of the clinic. (CCTV
Footage regarding this incident was presented to the Sessions Court by the Prosecution.)

[¶.4] On 16.06.2021, the daughter of Ms. Jemamani became very serious and was admitted to
the aforesaid hospital in the evening. Dr. Lata administered an injection to her. Later on, in the
place of injection, she developed pain followed by swelling and formation of pus, which was
subjected to cut. However, her condition did not improve. Thereafter, Ms. Jemamani asked Dr.

MEMORANDUM ON BEHALF OF APPELLANT

P a g e | vii
 VISWANATH PASAYAT MEMORIAL STAE LEVEL MOOT COURT
COMPETITON- 2021
Lata that if there was any complication in her daughter’s health then she would take her to the
Super Specialty Hospital and to which the doctor told her that there was no need for taking her
daughter to any other hospital and that she will be fine soon.

[¶.5] At about 2:00 A.M. on 18.06.2021, the nurse and staff of the hospital informed Ms.
Jemamani that the baby had died in the abdomen of her daughter and she is very serious and
the staff ousted her along with her daughter from the nursing home at 2:15 A.M. without being
provided with any prescription as also after having fleeced her of a sum of Rs. Five Lacs within
two days. Having left with no option, she took her daughter to Mother-Friendly Hospital, had
admitted her there and subsequently, she was told that her daughter was suffering from
Dengue, which had been diagnosed on the basis of pathological tests conducted there on 18th
itself. She was further informed by the hospital authorities that the baby had already died in
the abdomen of her daughter, on account of the negligence of the doctor treating her and her
condition was serious.

[¶.6] Ultimately, on 19.06.2021 at about 12:20 A.M., her daughter died and the death
certificate issued by Mother-Friendly Hospital clearly states that her daughter was suffering
from Dengue and she might have died on account of septicemic shock due to extensive ulcer.
(CCTV Footage was presented to the Sessions Court by the Prosecution which shows that the
complainant is leaving the Bright Health Nursing Home with her daughter in the Ambulance
of Mother-Friendly Hospital.)

[¶.7] On 19.06.2021, at around 03:00 AM, Ms. Jemamani gave a complaint to the Saheed
Nagar police stating that her daughter died because of the negligent act of Dr. Lata and her
daughter Dr. Radha. On the basis of the complaint of the Mother, a crime was registered against
the doctors alleging the commission of the offence under Sec. 304-A of the Indian Penal
Code,1860,.

[¶.8] After conducting the investigation and obtaining expert opinion, the Deputy
Superintendent of Police submitted a final report referring to the crime as a mistake of fact.Ms.
Jemamani thereafter filed a complaint in court alleging that her daughter died because of the
negligence of the doctor. The Additional Chief Judicial Magistrate, Bhubaneswar took
cognizance against Dr. Lata & Dr. Radha under Sections 304, 316 r/w 34 of the Indian Penal
Code. (Death Certificate was produced before the Additional Chief Judicial Magistrate.) The
Magistrate, after seeing that the offences are triable exclusively by the Court of Sessions had

MEMORANDUM ON BEHALF OF APPELLANT

P a g e | viii
 VISWANATH PASAYAT MEMORIAL STAE LEVEL MOOT COURT
COMPETITON- 2021
sent the case to that Court. After that, the Sessions Judge transferred the case for trial to the
IIIrd Addl. Sessions Judge. The Addl. Sessions Judge altered the charge of Section 304 to
Section 304-A.

[¶.9] The doctor, who conducted the postmortem examination of the dead body, was examined
during the enquiry conducted by the Addl. Sessions Judge. The opinion as to the cause of death
given by the doctor was that death was due to cardiorespiratory failure. It is thus the allegation
of the complainant that her only daughter has been virtually killed by Dr. Lata and the doctor
sitting in the laboratory (Dr. Radha) inasmuch as the doctor has treated the daughter of the
complainant negligently and the doctor sitting in the laboratory had failed to conduct further
pathological test correctly.

[¶.10] Learned Counsel appearing on behalf of the accused persons has submitted that the
allegations made in the complaint petition are false and concocted and the order taking
cognizance is bad in law in view of the settled proposition of law as propounded by the Hon’ble
Apex Court and this Hon’ble Court in a catena of cases. It was submitted that the Accused-1
(Dr. Lata) is a reputed lady doctor of Bhubaneswar and is well qualified inasmuch as she
possesses the following educational qualifications:- (i) M.B.B.S. degree from Medico
University, (ii) Diploma in Gynae and Obs. (DGO) and (iii) M.S. in Obstetrics and
Gynecology.

[¶.11] It was submitted that Accused-1 (A-1) is a competent and well-qualified doctor, who
has treated several pregnancy cases and there has been no complaint whatsoever much less any
complaint of negligence in respect of treatment and conducting operations. It was further
submitted that as far as the present case is concerned, there was no fault on the part of the A-1
and the fact is that the daughter of the complainant was under the treatment of A-1 since
November 2020 and on 13.06.2021 she had come to the nursing home for a regular check-up
and was having fever since one day. Thus, on the very same day, blood tests and other tests
were conducted and probably on account of the incubation period, the Dengue test, conducted
by Sahoo lab had turned out to be negative. Whereafter, A-1 had advised the requisite treatment
to be followed and then the complainant and her daughter had left the clinic.

[¶.12] In the evening of 16.06.2021, the complainant and her daughter had again come to the
hospital and Ms. Jemamani informed that her daughter is serious and is suffering from high

MEMORANDUM ON BEHALF OF APPELLANT

P a g e | ix
 VISWANATH PASAYAT MEMORIAL STAE LEVEL MOOT COURT
COMPETITON- 2021
fever and severe body pain and requested to admit her. Thereafter, her daughter was admitted
to the hospital and an intramuscular injection of Paracetamol was administered to her.

[¶.13] On 17.06.2021, at around 09:30 P.M., the daughter of the complainant complained that
there was no movement of the child in the abdomen and she was advised to do an ultrasound
examination. Thereafter, the complainant took her daughter for the ultrasound which was
conducted at Montu X-ray & Ultrasound Clinic at about 11:00 P.M., which is not in any
manner connected with the clinic of the A-1, and it was detected that the foetus was dead.
Hence, the A-1 had advised for induction of labour pain and upon the complainant and her
daughter had agreed for the same, the process was started and saline water was administered
for safe delivery of the dead foetus.

[¶.14] In the meantime, dark brown mixed-blood started oozing out from the mouth and nose
of the daughter of the complainant, hence on 18.06.2021, at around 02:00 A.M. complainant
was advised to take the patient to the medical emergency department of SCB, Khordha since
she required immediate medical treatment for vomiting and ICU facility was not available at
the nursing home of the A-1. Thereafter, a detailed slip was given to the complainant for a
reference regarding the problem of the daughter of the complainant so that appropriate
treatment could be administered at SCB.

[¶.15] The complainant, at her own risk, got her daughter admitted to Mother-Friendly Hospital
in the early morning of 18.06.2021, whereupon several pathological tests appear to have been
conducted and it was detected that the daughter of the complainant was suffering from Dengue.
It was submitted that the complaint case has been filed only on the presumption that wrong
treatment was administered to the daughter of the complainant without there being any expert
opinion of a competent doctor regarding the treatment administered by the A-1. (A copy of the
slip which was given to the complainant was produced by the Defence before the Sessions
Court and the complainant has admitted about the same during her Cross Examination.)

[¶.16] It was also submitted that Accused-2 (A-2) is possessing an MBBS degree, diploma in
clinical pathology and MD (Pathology) degree. She is having reasonable work experience and
had joined Sahoo Lab as a pathologist on 01.09.2015, whereafter she had worked there till
date. It was further submitted that she is a competent Pathologist and has wide experience.

MEMORANDUM ON BEHALF OF APPELLANT

Page|x
 VISWANATH PASAYAT MEMORIAL STAE LEVEL MOOT COURT
COMPETITON- 2021
[¶.17] The information by virtue of a certificate submitted under Section 65-B of the Indian
Evidence Act, 1872 was laid down before the Sessions Court and a competent expert witness
under Section 45-A of the Act has admitted to the genuineness of the produced records relating
to all the CCTV footages. The evidence has been verified as genuine and has been admitted as
a valid piece of evidence by the Sessions Court.

[¶.18] After careful perusal of the facts, evidences and circumstances presented before the
learned Addl. Sessions Judge, he convicted the accused persons under Sections 304-A, 316
r/w 34 and sentenced them to undergo simple imprisonment of 1 year and a fine of Rs. 50,000
and simple imprisonment of 6 years and a fine of Rs. 60,000 respectively as he was of the
opinion that the prosecution has established their guilt. Further, the Court directed that both
the sentences shall run concurrently and both the amounts of fine shall be paid to the
complainant as compensation.

[¶.19] The accused persons have filed an appeal in the High Court of Orissa seeking to set
aside the order of conviction since the Trial Court has overlooked material facts and evidences
on record which were in favour of the accused persons and the prosecution has not proved the
case beyond all reasonable doubts. Ms. Jemamani (mother of the deceased) on the other hand
has preferred a Criminal Appeal before the Hon’ble High Court of Orissa against the impugned
order passed by the Trial Court on grounds that there was indeed sufficient evidence on record
to point to the guilt of the accused but the punishments are inadequate and insufficient for such
a grievous crime.

MEMORANDUM ON BEHALF OF APPELLANT

P a g e | xi
 VISWANATH PASAYAT MEMORIAL STAE LEVEL MOOT COURT
COMPETITON- 2021

ISSUES RAISED

ISSUE I: WHETHER THE ACCUSED PERSONS CAN BE HELD LIABLE UNDER

THE AMBIT OF SECTION 316 OF INDIAN PENAL CODE, 1860, OR NOT?

ISSUE II: WHETHER THE ACCUSED PERSONS CAN BE HELD CRIMINALLY

LIABLE UNDER THE AMBIT OF SECTION 304-A OF INDIAN PENAL CODE, 1860,
OR NOT?

ISSUE III: WHETHER THE ACCUSED PERSONS CAN BE HELD CRIMINALLY

LIABLE UNDER SECTION 34 OF INDIAN PENAL CODE, 1860, OR NOT?

MEMORANDUM ON BEHALF OF APPELLANT

P a g e | xii
 VISWANATH PASAYAT MEMORIAL STAE LEVEL MOOT COURT
COMPETITON- 2021

SUMMARY OF ARGUMENTS

ISSUE I: WHETHER THE ACCUSED PERSONS CAN BE HELD LIABLE UNDER

THE AMBIT OF SECTION 316 OF INDIAN PENAL CODE, 1860, OR NOT?

It is most humbly submitted before the Hon’ble court that to prove the accused persons liable
under the ambit of Section 316 of IPC,1860, there must be an act under such circumstances &
the offspring of such act cause the death of a quick unborn child, shall be punished with
imprisonment of either description for a term which may extend to ten years, and shall also be
liable to fine. But there is an exception to this rule. The experts are considered as witnesses
although they are not actually related to the case. The court requires these experts to give an
opinion regarding the case to help the court in having a wider perspective to give justice.

It is henceforth submitted that the Prosecution had failed in a gross manner to prove the
essentials of Section 316 of Indian Penal Code,1860, beyond all the reasonable doubt which
makes a person liable for the offence under Section 316 of Indian Penal Code,1860,.

ISSUE II: WHETHER THE ACCUSED PERSONS CAN BE HELD CRIMINALLY

LIABLE UNDER THE AMBIT OF SECTION 304-A OF INDIAN PENAL CODE,1860,
OR NOT?

It is most humbly submitted before the Hon’ble court that the accused persons cannot be held
liable under section 304 A of IPC,1860, as the doctor itself suggested for several tests along
with dengue tests when the deceased victim and her mother rushed to her clinic claiming high
fever. The complainant deceased was a regular pateint of the doctor since her pregnancy period
started and never had any complains the complainant deceased always had an option to change
her doctor but she didn't. There was absolutely no presence of any rash or negligent Act from
the side of the Convicts. Here the essentials of sec 304 A are not fulfilled to give punishment

MEMORANDUM ON BEHALF OF APPELLANT

P a g e | xiii
 VISWANATH PASAYAT MEMORIAL STAE LEVEL MOOT COURT
COMPETITON- 2021
to the convicts as per it. Even after suggesting the complainant deceased the best and immediate
treatment and transfer the complainant deceased and mother with their free will moved to other
clinic in the ambulance service of Dr Sahoo's clinic.

Henceforth, it is submitted that the accused persons cannot be held criminally liable under the
ambit of section 304A.

ISSUE III: WHETHER THE ACCUSED PERSONS CAN BE HELD CRIMINALLY

LIABLE UNDER SECTION 34 OF INDIAN PENAL CODE, 1860, OR NOT?

It is most humbly submitted before the Hon’ble court that sec 34 of IPC,1860, speaks about
having common intention. But here there was no common intention of the accused persons to
cause harm to the complainant deceased. They did their job regularly but inspite of that the
patient died.
Henceforth, it is submitted that as the essentials of section 34 are not met so the accused persons
cannot be held liable under section 34 of IP, 1860.

MEMORANDUM ON BEHALF OF APPELLANT

P a g e | xiv
 MOOT COURT, PAPER CODE- LM 409
SOA National Institute of Law (SNIL)

ARGUMENTS ADVANCED

ISSUE I: WHETHER THE ACCUSED CAN BE HELD CRIMINALLY LIABLE

UNDER THE AMBIT OF SECTION 316 OF INDIAN PENAL CODE, 1860, OR NOT?

It is most humbly submitted before the Hon’ble High Court that the Section 316 of Indian
Penal Code,1860, (Here in referred as Sec 316 of IPC,1860) expressively speaks about Causing
death of quick unborn child by act amounting to culpable homicide, With due respect the
Council from the side of the Appellant would like to submit that to prove the accused persons
liable under the ambit of Section 316 of IPC,1860, there must be an act under such
circumstances & the offspring of such act cause the death of a quick unborn child, shall be
punished with imprisonment of either description for a term which may extend to ten years,
and shall also be liable to fine.

In conformity of the above para Council would like to throw light over the essential ingredients
of Section 316 of IPC,1860,. To attract the Provision of Section 316 of IPC, 1860, there
must be an

(i) there must be an act under such circumstances

(ii) & the offspring of such act cause the death of a quick unborn child,

So the Council thinks it to be pertinent to mention that the side of the Prosecution had
expressively failed to establish its case beyond all the reasonable doubts & it is so because there
in the Proceedings held by the respective Addl. Sessions Court there is no express explanation
of the respective Doctor who conducted the Postmortem of the dead body regarding neither the
explanation of the deceased foetus as well as of the deceased Mother of the foetus, With due
respect in the entire Proceedings informant of the Addl. Session Judge the side of the
Prosecution has failed in a gross manner to prove the Guilt of the respective accused through
which we can lead to an conclusion regarding the death of the unborn child.as this case is
beyond the understanding of the respective Court because it is very much important that the
dead foetus must have been examined by an expert but the foetus was never examined by the
expert even though the dead foetus was not examined by the foetus but the Mother of the Foetus

MEMORANDUM ON BEHALF OF APPELLANT

Page|1
 VISWANATH PASAYAT MEMORIAL STAE LEVEL MOOT COURT
COMPETITON- 2021
was examined by the Expert & no explanation regarding the death of the foetus was produced
by an expert to prove the guilt of the co-accused hence the Council would like to state that the
Conviction of the co-accused is not beyond all the reasonable doubts.

Experts are considered as witnesses although they are not actually related to the case. The court
requires these experts to give an opinion regarding the case to help the court in having a wider
perspective to give justice. The rationale behind the same is that it is not practical to expect the
Judges to have adequate knowledge of medical issues [1]. The statutes regarding the experts’
opinion are discussed in Indian Evidence Act of 1872.

In the entire factsheet there is nowhere proved regarding the death of the unborn baby was due
to any act of the accused persons. With due respect the side of the Council would like to submit
that the expert opinion was taken but in regards with the death of the mother of the deceased
unborn child (without any reasonable explanation) but no expert opinion was able to establish
the cause of the death of the unborn baby was nexuses with the act of the accused persons.

So in conformity with the above Arguments the side of the Appellant would like to establish
that the Prosecution had failed in a gross manner to prove the essentials of Section 316 of Indian
Penal Code,1860, beyond all the reasonable doubt which makes a person liable for the offence
under Section 316 of Indian Penal Code,1860, .

Murugan v State the accused physically assaulted his 20 weeks pregnant wife thereby causing
death of foetus. The medical evidence showed the foetus starts taking shape after about 12
weeks of conception. The accused was therefore, convicted for the offence of causing death of
a quick unborn child u/s 316 of IPC,1860,.

So in conformity to the above Judgement not only the Death but the cause of the death was
also well explained which was due to the Physical Assault of the Husband to her wife which
lead to the death of the foetus but in this case there was no explanation regarding the cause of
the death of the foetus. The Appellant nowhere in the entire petition is challenging the death of
the foetus but the Appellants are only challenging that no explanation was recorded regarding
the cause of the death of the foetus. The respective side of the Prosecution had to make the
respective accused persons liable under the ambit of Section 316 of IPC,1860, then it was of
the Paramount interest to prove the cause of the death of the foetus & if the cause of the death

MEMORANDUM ON BEHALF OF APPELLANT

Page|2
 VISWANATH PASAYAT MEMORIAL STAE LEVEL MOOT COURT
COMPETITON- 2021
of the foetus would have arisen due to the act of the accused persons then only both the accused
would have held liable for the offence falling under Section 316 of IPC,1860.

ISSUE II: WHETHER THE ACCUSED PERSONS CAN BE HELD LIABLE UNDER
THE AMBIT OF SECTION 304A OF INDIAN PENAL CODE, 1860, OR NOT?

It is most humbly submitted before the Hon’ble court that Section 304-A of Indian Penal
Code,1860, (Here in referred as 304-A of IPC,1860,), expressively speaks about Death by
Negligence, To make any person Criminally liable under this section it is of paramount
importance to Prove the respective essentials, If we read the Statute in adherence with the Rules
of Interpretation we will come to a consideration that the Section can only come into force
when:-

(I) There is a rash or negligent act of another Person, &,

(II) The outcome of the rash or negligent Act leads to a death of a person.

This section is an exception to Sec 304 of IPC,1860, because in the Statue itself it states that
the rash or negligent act of another Person not amounting to culpable homicide.

The basic difference between Section304 & 304-A of IPC,1860, is very thin that the difference
in both lies in the presence of Knowledge. If a person carries knowledge that the act would lead
to death of a person & after knowing also he does the act & the outcome leads to the death of
a person then in that case a person is held liable for Culpable Homicide under the Ambit of
section 304 of IPC,1860,, But when a person doesn’t have any knowledge but commits the Act
which is rash or is negligent in nature & due to which there is death of a person then in that
case a person is held liable for Causing death by negligence & booked under the provision of
304-A of IPC,1860.

So, after the above explanation of the statute it is pretty much pertinent to mention that the
Statute no 304-A of IPC,1860, will only get attracted when there is a rash or negligent act of

MEMORANDUM ON BEHALF OF APPELLANT

Page|3
 VISWANATH PASAYAT MEMORIAL STAE LEVEL MOOT COURT
COMPETITON- 2021
another Person & the rash & negligent act of one would lead to the death of another. With due
respect the Council from the side of the convict would like to first divide the argument of the
above stated issue into two parts, The first Part must lead to explain that there is proper
diligence applied by the accused persons & the later part would focus over explaining that the
death of the victim is nowhere in conformity with the negligence act of the accused.

The Council would like to state that there is absolutely no presence of any rash or negligent
Act from the side of the Convicts, It is so submitted because if we look into the Literal meaning
of the Term Negligence from the dictionary of Blacks Law then we will be coming to know
that negligence is nothing but the failure to exercise the standard of care that a reasonably
prudent person would have exercised in a similar situation. In conformity to the definition of
Negligence from the dictionary of Blacks Law to prove the presence of diligence we have to
prove the presence of Standard of Care which a reasonable prudent person would have
exercised in similar situation.

Martin F. D’Souza v Mohd. Ishfaq 2009 3 SCC 1it was held that : The test in fixing
negligence is the standard of the ordinary skilled doctor exercising and professing to have that
special skill, but a doctor need not possess the highest expert skill. Considering the facts of the
case, it cannot be held that the appellant was guilty of medical negligence. [Para 76]

RATIO DECIDENDI

I. “A medical practitioner is not liable to be held negligent simply because things went
wrong from mischance or misadventure or through an error of judgment in choosing one
reasonable course of treatment in preference to another. He would be liable only where his
conduct fell below that of the standards of a reasonably competent practitioner in his field.”

II. “Standard of care has to be judged in the light of knowledge available at the time of
incident and not at the date of the trial.”

With due respect to prove the presence of Standard Care on the sides of the convicts the
Council would like to submit infront of this Hon’ble Court that the doctor itself suggested for
several tests along with dengue tests when the deceased victim and her mother rushed to her
clinic claiming high fever. Henceforth the standard of care has been exercised by the accused
as time and again the tests, check ups and every other due deligent care was performed by the

MEMORANDUM ON BEHALF OF APPELLANT

Page|4
 VISWANATH PASAYAT MEMORIAL STAE LEVEL MOOT COURT
COMPETITON- 2021
accused since first day of pregnancy and no complaints were raised before and their lies no
doubt that the accused would have done the same act further on .

Jacob Mathew vs State of Punjab &Anr.2005(3) Criminal Court cases 0858 S.C

It was dispossed off the case on the application of the accused. The Additional Session Judge
set aside the order of discharge and the order of Additional Session Judge was upheld in
evision. In the mentioned Jacob Mathew’s case(supra) it was held by the Supreme Court that
death in case of medical negligence should be kept and understood differently than death in
ordinary circumstances. In this case court already mentioned that medical professionals deal
with patients on a very serious note and they find themselves sometimes in a situation where
they are expected to take decisions which they might deem to be right but may not be true but
they can not be held responsible of criminal medical negligence for the same unless negligence
amounts to be of very high degree, whereas in this case in hand.

In Jacob Mathew, the Supreme Court had laid down guidelines to govern the prosecution of
doctors for offences of which criminal rashness or criminal negligence is an ingredient. It had
said the followings:-

- A private complaint may not be entertained unless the complainant has produced prima facie
evidence before the Court in the form of a credible opinion given by another competent doctor
to support the charge of rashness or negligence on the part of the accused doctor

-The investigating officer should, before proceeding against the doctor accused of rash or
negligent act or omission, obtain an independent and competent medical opinion preferably
from a doctor in government service qualified in that branch of medical practice who can
normally be expected to give an impartial and unbiased opinion applying Bolam’s test to the
facts collected in the investigation.

-A doctor accused of rashness or negligence, may not 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.

MEMORANDUM ON BEHALF OF APPELLANT

Page|5
 VISWANATH PASAYAT MEMORIAL STAE LEVEL MOOT COURT
COMPETITON- 2021
-With due respect to prove the presence of Standard Care on the sides of the convicts the
Council would like to submit infront of this Hon’ble Court that the doctor itself suggested for
several tests along with dengue tests when the deceased victim and her mother rushed to her
clinic claiming high fever. The complainant as well as the deceased used to visit the Convict
since 20.11.2020 which was from the beginning of the pregnancy period & never had any
complains. In the morning of 13.06.2021, Ms. Pritisikha and her mother had came for a regular
checkup of Ms.Pritikha to Dr. Lata and was having fever since one day. Thus, on the very same
day, blood tests and other tests were conducted and probably on account of the incubation
period, the Dengue test, conducted by Sahoo lab had turned out to be negative. Ms. Pritisikha
was quite perplexed and went to the aforesaid lab in the evening &she again requested the
doctor sitting in the lab (Dr. Radha Sahoo, daughter of Dr. Lata Sahoo) to repeat the Dengue
test since she was pregnant for last seven months and was suffering from fever, Dr. Radha(
Convict no.2) denied for retest for dengue & made them explain regarding the medical
complications that of the deceased being hyper & sent them to thereafter, they went to meet
Dr. Lata whereupon they were told that everything was fine. However, Ms. Jemamani
requested the doctor to get the Dengue test of her daughter conducted again. Upon hearing this
,Dr.Lata did exactly which every medical practioner would have done ,she tried to calm both
of them down. which the mother of the deceased (Complainant) misleaded by stating that the
Convict no.2 became angry & abused both of them where after forcibly ousted them from the
said premise & when they approached Dr. Lata then she also threatened both of them and
called her staff who thrown them out of the clinic .The facts mentioned by the Complainant
were absolutely vague as well as false because she failed to prove here issue beyond all the
reasonable doubts.

In the evening of 16.06.2021, the complainant and her daughter had again come to the hospital
and Ms. Jemamani informed that her daughter is serious and is suffering from high fever and
severe body pain and requested to admit her. Thereafter, her daughter was admitted to the
hospital and an intramuscular injection of Paracetamol was administered to her.

On 17.06.2021, at around 09:30 P.M., the daughter of the complainant complained that there
was no movement of the child in the abdomen and she was advised to do an ultrasound
examination. Thereafter, the complainant took her daughter for the ultrasound which was
conducted at Montu X-ray & Ultrasound Clinic at about 11:00 P.M., which is not in any

MEMORANDUM ON BEHALF OF APPELLANT

Page|6
 VISWANATH PASAYAT MEMORIAL STAE LEVEL MOOT COURT
COMPETITON- 2021
manner connected with the clinic of the A-1, and it was detected that the foetus was dead.
Hence, the A-1 had advised for induction of labour pain and upon the complainant and her
daughter had agreed for the same, the process was started and saline water was administered
for safe delivery of the dead foetus.

[In the meantime, dark brown mixed-blood started oozing out from the mouth and nose of the
daughter of the complainant, hence on 18.06.2021, at around 02:00 A.M. complainant was
advised to take the patient to the medical emergency department of SCB, Khordha since she
required immediate medical treatment for vomiting and ICU facility was not available at the
nursing home of the A-1. Thereafter, a detailed slip was given to the complainant for a
reference regarding the problem of the daughter of the complainant so that appropriate
treatment could be administered at SCB].

The complainant, at her own risk, got her daughter admitted to Mother-Friendly Hospital in
the early morning of 18.06.2021, whereupon several pathological tests appear to have been
conducted and it was detected that the daughter of the complainant was suffering from Dengue.
It was submitted is submitted that the complaint case has been filed only on the presumption
that wrong treatment was administered to the daughter of the complainant without there being
any expert opinion of a competent doctor regarding the treatment administered by the A-1. (A
copy of the slip which was given to the complainant was produced by the Defence before the
Sessions Court and the complainant has admitted about the same during her Cross
Examination.)

Further to Prove the diligence of the doctor & the co accused (as it was challenged by the
Complainant without any reasonable proof), the Council would like to refer the guidelines of
the WHO regarding prevention & control of dengue & DHF. If we infer the spirit of the
guidelines then we can come to know that WHO has mentioned that:-

“Dengue is itself an indistinguishable virus from other sort of virus, because especially when
it happens for the first time to a person it only symptoms of high fever which is very common
in viral infections”.(page 17 last para & page 18 staring two lines.)Again referring to the WHO
guidelines page 18 under clinical features “It has been clearly mentioned that the incubation
period of dengue fever is of 4-7 days . while here in this case of the deceased she complained

MEMORANDUM ON BEHALF OF APPELLANT

Page|7
 VISWANATH PASAYAT MEMORIAL STAE LEVEL MOOT COURT
COMPETITON- 2021
about fever only on 13’th (which was her first day of symptoms) and test turned out to be
negative and hence immediate second tests were not of any use

.Again referring under page 24 of clinical manifestations of WHO regarding prevention &
control of dengue &&DHF “the minimum fever period mentioned is 2-7 days in most of the
cases, so after consideration of that time duration of fever only one can be more pertinent to be
tested positive for dengue. So with the above arguments it can be pretty pertinent to mention
that the accused Doctor as well as her daughter has exercised all there diligence it is the virus
which is complex & doesn’t comes into count from its very beginning.

The Council would like to also mention that, the case is beyond the understanding as well as
prudency of the layman as well as of the court. It is so because the death of the deceased as
well as her child is exclusively nexuses with medical negligence & hence to understand the
actual reasoning behind the death of the victims it is pertinent to mention that there should be
appointment of an expert witness, with due respect if we refer into para no.9 of the fact sheet
then we will come into consideration that the doctor who conducted the post-mortem
examination of the dead body, was examined during the enquiry conducted by the Addl.
Sessions Judge. The opinion as to the cause of death given by the doctor was that death was
due to cardiorespiratory failure. It is thus the allegation of the complainant that her only
daughter has been virtually killed by Dr. Lata and the doctor sitting in the laboratory (Dr.
Radha) inasmuch as the doctor has treated the daughter of the Complainant. But death due to
cardiorespiratory failure doesn’t makes neither the accused no.1 nor the accused no.2
Criminally liable to the death of the daughter of the Complainant nor her grandchild.

In the above para the Council thought pertinent to mention regarding no Criminal lability on
the shoulders of accused’s relating to the death of the deceased & her child because it is
nowhere settled that whether the cardiorespiratory failure occurred because of the negligence
or wrong medicating of the doctor or whether it is because of some other reasoning with which
the doctor is related with .

Anjana Agnihotri vs. the State of Haryana 2020 SC criminal appeal no 770 of 2009 In this
case, a doctor was accused of Medical Negligence for allegedly not attending a woman after
performing a cesarean operation, which resulted in her death. She was discharged by the Trial
Court by allowing her application. But ultimately, the Appellate Court reversed this order of

MEMORANDUM ON BEHALF OF APPELLANT

Page|8
 VISWANATH PASAYAT MEMORIAL STAE LEVEL MOOT COURT
COMPETITON- 2021
the Trial Court. When the matter appeared before the Supreme Court, it referred to the
judgement delivered in Jacob Mathew vs. State of Punjab & Anr. (2005) 6 SCC 1 and
accordingly observed that to prosecute the medical professionals for negligence under criminal
law, something more than mere negligence had to be proved.

If we refer into illustration no.(a) of Section 45 of the Indian Evidence Act:

“The question is, whether the death of A was caused by poison. The opinions of experts
as to the symptoms produced by the poison by which A is supposed to have died are
relevant”.

Likewise if we refer into the spirit of the illustration, the doctor who was the post mortem
examiner stated that the death of the deceased took place due to the cardiorespiratory failure
which the Appellant side is not making an issue but what the appellant side is making an issue
is that how the Additional Session Judge held both of the accused Criminally liable because if
we refer into the entire Fact sheet then no inference can be drawn that the cardiorespiratory
failure was an offspring of the negligent treatment or such a wrongful ill-diligent act of the
accused no.1 or her daughter who is accused no.2.

In the case of “Lala Ram vs State of Rajasthan 2003(3) Criminal Court cases (0212)
Rajasthan”

It was held that the Opinions without reason is not conclusive.

From the above Judgement it can be referred that the Doctor who conducted the post mortem
formed an Opinion regarding the death of the deceased but no reasons were given regarding
how the accused’s were nexus with the death of the victim

In conformity to the above Judgement as well as Arguments the council would like to cite
another Judgement which supports the same spirit.

“Krishna Kanta Das vs State of Assam 2005(3) criminal court cases 0272 Guwahati”.

An expert opinion is valueless unless the opinions is supported by reasons and data .An expert’s
opinion is not binding on the courts, it is Only relevant under section 45 of the Indian Evidence
Act 1872.For such expert opinions to be accepted by the courts experts must assign reasons,

MEMORANDUM ON BEHALF OF APPELLANT

Page|9
 VISWANATH PASAYAT MEMORIAL STAE LEVEL MOOT COURT
COMPETITON- 2021
for it is the reason given by the experts is important not here mere opinion without reasons and
data.

ISSUE III: WHETHER THE ACCUSED PERSONS CAN BE HELD CRIMINALLY

LIABLE UNDER SECTION 34 OF INDIAN PENAL CODE, 1860, OR NOT?

It is most humbly submitted before the Hon’ble High Court that the With due respect & high
dignity the Council from the side of the Appellant would like to mention that Section 34 of
Indian Penal Code,1860, expressively speaks about Common intention.

Section 34 of Indian Penal Code, 1860, states Acts done by several persons in furtherance of
common intention.

The section explains that “When a criminal act is done by several persons in furtherance of the
common intention of all, each of such persons shall be liable for that act in the same manner as
if it were done by him alone. “The basic Object of this Section is that there must be a particular
objective, fulfilment of which is the ultimate goal of all the members of the group. Under the
ambit of this section, every person engaged in the commission of a crime is held responsible
by virtue of his or her participation in the criminal act. Sec. 34 Indian Penal Code, 1860, does
not state for any specific offence. It only lays down the rule of evidence that if two or more
persons commit a crime in order of common intention, each of them will be held jointly liable.

If we take a deep look into the Order of Conviction which has been mentioned in the following
fact sheet then we will come into an understanding that Section 34 of Indian Penal Code,1860,
(1860) is absolutely in Pari Materia with Section 316 of Indian Penal Code(1860) & Section
304-A of Indian Penal Code,(1860). As the Appellant side has expressively mentioned that
Sec. 34 Indian Penal Code, 1860, does not state for any specific offence. It only lays down the
rule of evidence that if two or more persons commit a crime in order of common intention,
each of them will be held jointly liable, To prove the accused no.1 as well as accused no.2
liable under the provision of Section 34 the Prosecution had to prove the Common intention of
the respective accused, which the side of the Prosecution had expressively failed to prove. In

MEMORANDUM ON BEHALF OF APPELLANT

P a g e | 10
 VISWANATH PASAYAT MEMORIAL STAE LEVEL MOOT COURT
COMPETITON- 2021
the entire factsheet it is nowhere mentioned regarding the Presence of Common Intention in
the shoulders of accused as well as her daughter (accused no.2).

To make two or more than two persons liable under the ambit of Section 34 of IPC,1860, a
person has to prove the respective essentials of the Section, the respective essentials of Section
34 are as such:-

1. A criminal act must be done by several persons.

2. There must be a common intention of all to commit that criminal act. In reference to
this principle,

3. There must be a participation of all in the commission in relation to that common

intention.

With due respect the side of the Prosecution has failed to prove any of the respective essentials
in the entire Proceedings in front of the Additional Sessions Judge. Neither there is presence
of any kind of Criminal Act nor there is any common intention inconformity to commit that
Criminal Act, so the Complainant side has failed to prove the Guilt of the respective accused
persons so it is pretty obvious that non of the accused can be held liable for commission of any
of the respective offence.

Jagan Gope vs State of West Bengal CRA 389 of 2012 HC Cal 2019

Held: Common intention under Section 34 of the Indian Penal Code is a species of constructive
liability which renders every member of a group who shares such intention responsible for the
criminal act committed by anyone of them when such act is done in furtherance of the common
intention. Although accused persons may have similar intention to commit a crime, say murder,
until and unless the pre-requisites of : (a) pre-consent, (b) presence and (c) participation in
respect of each accused are established, it cannot be said that they shared common intention
and be culpable for the crime committed by any of them in furtherance to such intention

MEMORANDUM ON BEHALF OF APPELLANT

P a g e | 11
 VISWANATH PASAYAT MEMORIAL STAE LEVEL MOOT COURT
COMPETITON- 2021

PRAYER

Wherefore in the light of the facts stated, issues raised, authorities cited, and arguments
advanced, it is most humbly prayed before this Honourable Court that it may be pleased
to adjudge and declare:

1. To set aside the order of conviction given by the trial court.

2. To declare the respective accused persons guilty free form the criminal charges and in
conformity to the above pass an order which should be expressly dealing with the
acquittal of the accused persons.

And/Or,

To grant any other order in favour of the appellants which the Hon’ble Court may deem
think fit in the eyes of Justice Equity and Good Conscience.

All of which is respectfully submitted and for such act of kindness the Appellants shall be
duty bound as ever pray.

Place: ODISHA S/d_____________

Date: COUNSEL ON BEHALF OF THE APPELLANTS

MEMORANDUM ON BEHALF OF APPELLANT

P a g e | 12