2nd TRIAL ADVOCACY MOOT

COMPETITION,2022
ICFAI LAW SCHOOL,DEHRADUN

BEFORE THE HON’BLE

RISHABH SHUKLA………………….APPELLANT
DR. SALONI KHWAJA………………RESPONDENT

MEMORANDUM ON BEHALF OF THE

APPELLANT
 TABLE OF CONTENTS
INDEX OF ABBREVIATIONS _________________________________ I
INDEX OF AUTHORITIES ____________________________________ II
JUDICIAL DECISIONS
BOOKS
STATUES REFERRED
WEBSITES REFERRED
STATEMENT OF JURISDICTION ______________________________
STATEMENT OF FACTS _____________________________________
QUESTIONS OF LAW _______________________________________
SUMMARY OF ARGUMENTS ________________________________
ARGUMENTS ADVANCED __________________________________
PRAYER __________________________________________________
 INDEX OF ABBREVIATIONS
1. § SECTION
2. ¶ PARAGRAPH
3. & AND
4. Ads ADVERTISEMENTS
5. AIR ALL INDIA REPORTER
6. Annex. ANNEXURE
7. Anr. ANOTHER
8. Art. ARTICLE
9. Cl. CLAUSE
10. Cr. CRIMINAL
11. CrLJ CRIMINAL LAW JOURNAL
12. CrPC CODE OF CRIMINAL PROCEDURE,1973
13. CS CHARGE SHEET
14. DW DEFENCE WITNESS
15. FIR FIRST INFORMATION REPORT
16.Govt. GOVERNMENT
17.HC HIGH COURT
18.Hon’ble HONOURABLE
19.i.e. THAT IS
20.IPC INDIAN PENAL CODE
21.MANU MANUPATRA
22.No. NUMBER
23.Ors. OTHERS
24.P. PAGE
25.PS POLICE STATION
26.PW PROSECUTION WITNESS
27.SC SUPREME COURT
28.SCC SUPREME COURT CASES
29.V. VERSUS
30.Vol. VOLUME
31.www WORLD WIDE WEB
 INDEX OF AUTHORITIES
A. JUDICIAL DECISIONS
S.No. Name of the cases and Case Citation Page No.

1. Andrews v. Director of Public Prosecutions [1937] A.C.

576 5
2. Arun Balakrishnan Iyer v. Soni Hospital AIR 2003 Mad
389 4
3. Bhalchandra Waman Pather v. State of Maharashtra, Mh
L.J. 423 8
4. Bolam v. Friern Hospital, (1957) 2 All ER 118 3
5. Dr. Gangadhar Behra v. State of Orissa 2001 CrLJ 2643
(Ori) 1,6,8
6. Dr. Lakshmanan Prakash v. State, 2001 ACJ 1204
7
7. Dr. Mrudla Suresh Deshpande v. The State of
Maharashtra 2001(3) BOMLR 205

8. Hucks v. Cole and Anr (1968) 118 New LJ 469 2,6

9. Indian Medical Association v. V.P. Shantha, 1995 (8) JT
119 7
10. Jacob Mathew vs. State of Punjab 2005 (3) CPJ 9 3,6
11. K.Sadanand v. Lisie Hospital 2006 (1) CPJ 24 7
12. Kusum Sharma and Ors. v. Batra Hospital and Medical
Research
Centre and Ors., AIR 2010 SC 1050
13. Lakshmanan Prakash v. State, 2001 ACJ 1204 3
14. Mahadev Prasad Kaushik v. State of U.P AIR 2009 SC
125 1,7
15. Malay Kumar Ganguly v. Sukumar Mukherjee, AIR 2010
SC 1162
16. Michael Hyde and Associates v. J.D. Williams & Co. Ltd.
[2001] P.N.L.R. 233
17. P.B. Desai v. State of Maharashtra, AIR 2014 SC 795
3,7,8
18. Pt. Parmanand Katara v. Union of India and Ors 1990
CriLJ 671 4
19. R v. Adomako [1994] (3) All E.R. 79 2
20. Suresh Gupta v. Government of N.C.T of Delhi AIR 2004
 SC 4091 3,5
21. Syad Akbar v. State of Karnataka 1979 CriLJ 1374 8
22. Umesh Chandra Samal v. State of Bihar 2006 (39) AIC
453 (Pat)
 BOOKS REFERRED
 PSA Pillai’s The law of evidence-25th edition, Lexis Nexis
 N Avtar Singh The law of evidence
 Ratanlal & Dhirajlal’s Criminal Law- 12th edition, Lexis Nexis
 K.D. Gaur, Textbook on The Indian Penal Code, 4th edition, Delhi:
Universal Law Publishing Co. Pvt. Ltd.
 Anoop K. Kaushal’s Medical Negligence and Legal Remedies: Universal
Law Publishing Co. Pvt. Ltd.

STATUTES
 The Indian Penal Code, 1860 [Act No. 45 of 1860]
 The Medical Council Act
 The Consumer Protection Act

WEBSITES
 STATEMENT OF JURISDICTION
The petitioner has approached this Hon’ble High Court of Dehradun
under original jurisdiction of High Court guaranteed under Article 226 of
Indian Constitution.

The Hon'ble High Court

has the jurisdiction to hear
the matter under Article
226
of Constitution of India,
1949.
The Hon'ble High Court
has the jurisdiction to hear
the matter under Article
226
of Constitution of India,
1949.
The Hon’ble High Court has the jurisdiction to hear the matter under
Article 226 of Constitution of India.
The Article 226 of Constitution Of India reads as hereunder:
Article 226: Power of High Court to issue certain writs :
1) Notwithstanding anything in Article 32 every High Court shall have
powers, throughout the territories in relation to which it exercise
jurisdiction, to issue to any person or authority any, including in
appropriate cases, any government, within those territories directions,
orders or writs
1. Prince is a 15 year old boy who studied in Stellar International School.
He fell down while he was playing in school on 15th march 2022, he was
given first aid by the school staff. On 16th march 2022 Prince was taken to
the hospital Satyabhama and there after the treatment began under Dr.
Satyabhama. At around 10:00 AM a xray was done and after examining
the report the doctor advised Rishabh Shukla who was the father of
prince, that prince had injuries on his left hand and he just needed
ointment and bandage, Dressing to be done regularly. Even after the
treatment the child was in pain. So, around the last week of march, he
was taken again to the same doctor. Where after another xray it was
discovered that his left hand was fractured.
2. After this the parents realised that the doctor wasn’t skilled enough.
Therefore, they took him to an orthopedist Dr. Saloni Khwaja on 23 rd
march 2022. She examined the xray and advised the family that the child
needed to be operated as the bones of his left hand were wrongly joined
she said that the operation could envolve certain complication and to be
mentally prepared for it. Since the parents not being completely confident
of the doctor’s advice they asked Dr. Saloni Khwaja to hold on the
operation for two nore days, they then consulted two more doctors and
they even advised that the child should be operated. Finally Rishabh
accompanied with his wife Kavya Shukla and few relatives consented for
Prince to be operated by Dr. Saloni and they deposited an amount of Rs.
40,000 at the hospital desk as an advance for the operation and a private
ward.
3. Mr. Rishabh Shukla signed the consent form for the operation and Mrs.
Kavya Shukla consented to become the witness for the same. The consent
form is annexed and marked as Exhibit-A. After the formalities being
completed, the operation began at around 1:00 pm . For the operation Dr.
Saloni was assisted by the junior doctor, Dr. Kasturi and a nurse Miss.
Anita. At around 5:00 pm Dr. Saloni came outside the operation theatre
and informed the parents that there are certain complications that have
emerged during the course of the operation and because of which Prince
is not able to breathe. Dr. Saloni then explained the family of Prince that
their hospital lacked ventilator facility therefore the child had to be
shifted to another hospital at the earliest. The doctor tried making certain
calls to the nearby hospitals, but none of them were equipped with the
ventilator facility either.
4. Finally Dr. Saloni was successful in her attemots , she was able to avail
the ventilator facility in NxtGen Hospital , Rajpur Road, Dehradun.When
the child was being shifted from Dr. Saloni’s Orthocare Hospital in
Ballupur to NxtGen Hospital in Rajpur Road. Dr. Zaheer sent his junior
doctor and asked him to help the child breathe through the oxygen mask.
When Prince was shifted he was shifted to the ICU and the situation of
the patient was assessed. After which the parents of Prince were informed
that there were bleak chances for the survival of the child, he asked if the
parents wanted to shift their child to some other hospital or they could
ask the doctors known to them to come and assess the child. They called
Dr. Paritosh Parashar to assess the child. In the meantime Dopamine was
administered to the child. After Dr. Paritosh Parashar visited Dr. Saloni
Khwaja was called and after immediately she reached , she was informed
that the child , Prince, was dead to which Dr. Saloni requested CPR
Treatment and DC Shocks to revive the child.
5. After which Dr. Zaheer informed the parents that the child was dead. On
hearing this the parents were horrified , they were not ready to accept the
truth and because of which they wanted to take the child to the Mandir, so
that God could save their child. Dr. Zaheer consented to it even though he
knew that it won’t save the child, as the child was already dead. After 30
minutes the parents returned with their child and requested Dr. Zaheer to
save him, to which Dr. Zaheer gave the child C.P.R and D.C Shock but it
was not able to revive the child.
6. Rishabh Shukla was in utter state of shock and in the meanwhile the
relatives of the Shukla family got infuriated and at around 10:00 pm they
started destroying the hospital property and they threatened that they will
be taking strict action against Dr. Zaheer and Dr. Saloni for their
negligence. The family of the deceased blamed the doctor’s for the death
of their child. According to the Shukla’s, it was the negligence of Dr.
Saloni Khwaja which resulted in the death of the child.In the meantime
police was called to curb the mob by the doctors. After which there was
an offence registered against Dr. Saloni. She applied for anticipatory bail
before the session’s court of Dehradun on 29/03/2022 and she was
granted the bail by the Hon’ble Sessions Court on 1/04/2022.
After which the investigating officer after recording the statement of
witnesses as well as the accused doctors and after collecting the relevant
information, filed the Charge Sheet before the Learned Magistratr. The
Magistrate after going through the record and the arguments put forth by
the public prosecutor on charge from section 304A to section
 304&committed the same to the Court of Sessions under section 304,323
and 336 of IPC.

STATEMENT OF ISSUES
I. Whether the act of Dr. Saloni Khwaja liable for culpable homicide not
amounting to murder u/s 304?
II. Whether Dr. Saloni Khwaja guilty of Medical Negligence under
Section 304A of IPC?
III. Whether Dr. Saloni Khwaja is guilty u/s 323 i.e. voluntarily causing
hurt?
IV. Whether the case is maintainable?
 SUMMARY OF Arguments
I. Whether the act of Dr. Saloni Khwaja liable for culpable homicide
not amounting to murder u/s 304?
For proving an offence under culpable homicide not amounting to murder the
prosecution must prove- that there exists knowledge of the act which in proximity
likely to cause death. And here we can very easily find the same, Dr. Saloni
Khawaja was very well aware of the fact that before administering anaesthesia to
the patient a test is required which is pre-Anaesthetic sensitivity test but she
although being aware of the fact that it might lead to serious consequences
avoided it.
II. Whether Dr. Saloni Khwaja guilty of Medical Negligence under
Section 304A of IPC?
The basic elements of Negligence are (a) Duty of Care (b) Breach of Duty
(c)Cause in fact (d)Proximate Cause and (e) Damage. These are the basic
elements of negligence, to prove the case of negligence all these criteria must be
satisfied and in cases of medical negligence in India, the ambit of duty of care
and proximate cause increases, as there are life involve in this situation.1
When there is civil wrong (right in rem) against a contractual obligation (right
in persona), with a breach of duty which invites the intervention of judges to
grant certain remedy for the damages then the tortious liability arises but the
standard of care is more in medical cases as compared to general cases.Principle
of Standard of care was laid down by Supreme Court in the case of Dr. Laxman
Balakrishna Joshi vs. Dr. Trimbark Babu Godbole AIR 1969,SC 128 and A.S
Mittal .v. State of U.P, AIR 1989 SC 1570 .
There is a maxim res ipsa loquitur 2which means :
Where the proof or evidence or an object of an accident directly points out
towards the guilt of the defendant and it shows that the defendant himself is the
cause of the accident.
For the element of Res Ipsa Loquitor to be made applicable in any case, the
accident should be such as which could not have happened if ordinary course of
things had happened without negligence. For instance, like in the case of Byrne v.
Boadle, a barrel of flour cannot randomly fall on someone's head if the party is
reasonably careful.

In Municipal Corporation of Delhi v. Subhagwanti, 1966 due to the collapse of

the Clock Tower situated opposite the Town Hall in the main Bazar of Chandni
1
https://blog.ipleaders.in/important-medical-negligence-cases-india/
2
legalserviceindia.com/legal/article-4923-the-doctrine-of-res-ipsa-loquitur.html#:~:text=The%20maxim
%20Res%20Ipsa%20Loquitur,the%20cause%20of%20such%20accident
 Chowk, Delhi, a number of persons died. The Clock Tower belonged to the
Municipal Corporation of Delhi and was exclusively under its control. It was 80
years' old but the normal life of the structure of the top storey of the building,
which had fallen, could be 40-45 years, having regard to the kind of mortar used.

In these circumstances, the Supreme Court held that the fall of Clock Tower tells
its own story in raising an inference of negligence on the part of the defendant.
Since the defendants could not prove the absence of negligence on their part, they
were held liable.
We take the reference of the cases A.H. Khodwa v. the State of Maharashtra,
1996, Mrs. Aparna Dutta v. Apollo Hospital Enterprises Ltd., 2000 and held
Dr. saloni Khwaja liable under sec. 304A of IPC because her action itself proves
it.
According to our prime witness Mr. Rishabh Shukla father of prince there was no
anaesthesit between the operation time i.e. 1 pm to 5 pm and hence anaesthesia
was administered to the patient with unskilled hands without the presence of any
qualified anaesthesist.
III. Whether Dr. Saloni Khwaja is guilty u/s 323 i.e. voluntarily
causing hurt?
To prove an offence u/s 323 there are three essential ingredients that need
to be present. Accused has caused hurt to the victim. The hurt caused was
voluntary in nature.
IV. Whether the case is maintainable?
 ARGUMENTS ADVANCED
I. Whether the act of Dr. Saloni Khwaja liable for culpable homicide
not amounting to murder u/s 304?

1. Section 304 provides punishment for culpable homicide not amounting to

murder- “Whoever commits culpable homicide not amounting to murder shall
be punished with imprisonment of either description for a term which may
extend to ten years, or with fine, or with both, if the act is done with the
knowledge that it is likely to cause death, but without any intention to cause
death, or to cause such bodily injuries as is likely to cause death.3
2. After bifurcating the definition, we get 3 conditions which have to be fulfilled
to attract Section 299 of the Indian Penal Code these are-
i) The intention of causing death.
ii) The intention of causing such bodily injury as is likely  to cause death.
iii) With the knowledge that he is likely by such an act to cause death.
3. For proving an offence under culpable homicide not amounting to murder there
exists knowledge of the act which in proximity likely to cause death. It is
reasonable to consider that the purported act has been done by Doctor Sinha
with the knowledge that in all probability it would result in the death of the
patient.
4. This can be explained by understanding few instances , Dr. Saloni is an
orthopedist and she in her past might have had various other operations , she
must be aware of the fact that there was no ventilator in her hospital and their
might arise a complication because of that .
5. Secondly, Dr. Saloni administered anaesthesia to the patient i.e. Prince without
the presence of any anaesthesist. According to the statements given by our
prime witness Rishabh Shukla there was no anaesthesist administered to the
operation theatre between the time of the operation i.e. 1 pm to 5 pm.
6. According to our postmortem report , it comes to a conclusion that the pre
anaesthetic sensitivity test was not done for the child , there might be a
possibility that the child might have been allergic towards anaesthesis.
7. Inspite of Dr. Saloni Khwaja being aware of the facts she performed them .
Mens Rea can be proved through the various concurrency of the acts and Actus
reus is proved by the act itself.

3
 V. Whether Dr. Saloni Khwaja guilty of Medical Negligence under
Section 304A of IPC?

1. 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”.
2. The basic elements of Negligence are (a) Duty of Care (b) Breach of Duty
(c)Cause in fact (d)Proximate Cause and (e) Damage. These are the basic
elements of negligence, to prove the case of negligence all these criteria must
be satisfied and in cases of medical negligence in India, the ambit of duty of
care and proximate cause increases, as there are life involve in this situation.4
3. When there is civil wrong (right in rem) against a contractual obligation
(right in persona), with a breach of duty which invites the intervention of
judges to grant certain remedy for the damages then the tortious liability arises
but the standard of care is more in medical cases as compared to general
cases.Principle of Standard of care was laid down by Supreme Court in the case
of Dr. Laxman Balakrishna Joshi vs. Dr. Trimbark Babu Godbole AIR
1969,SC 128 and A.S Mittal .v. State of U.P, AIR 1989 SC 1570 .
4. Medical Negligence is the tort which takes cognizance of the
following5:

1. A legal duty either express or implied to treat patient must exist.

2. Breach of such legal duty, if any, in comparison to the expected
conduct and performance of the people from the same profession.
3. Presence of damage caused by such breach which must result in
injury which needs to be compensated.

The remarkable statement of law propounded in the

6
famous Bolam’s case  has been extensively accepted as decisive for the
4
https://blog.ipleaders.in/medical-negligence-liability-consumer-protection-act/

5
https://indiankanoon.org/doc/114294154/?type=print

6
https://blog.ipleaders.in/medical-negligence-liability-consumer-protection-act/
standard of care necessary for both, professional men generally and medical
practitioners specifically. The two things which are vital before hearing any
case relating to medical negligence have been noted below:

5. When evaluating the standard of care as adopted in the practice

by the medical practitioner, the standard of care is assessed
bearing in mind the knowledge obtainable at the time
contemporary to the occurrence of the incident, we have the
statement of Shukla’s family and Santosh Pathak, being the eye
witness has witnessed all the actions.
6. At the time of emergence of medical negligence caused due to
failure to use some particular medical equipment, here there was
failure of the ventilator facility that was required according to the
postmortem report there was no evidence of endotracheal
intubationi.e. there was no respiratory pipe that was inserted into
the child’s body.
7.
8. Taking references from the cases :
Mrs. Aparna Dutta v. Apollo Hospital Enterprises Ltd., 2000
A.H. Khodwa v. the State of Maharashtra, 19967
in these cases negligence from the doctors and hospital staffs lead to serious
situations and u;timately resulted in the patient’s death.
9. This can be explained by understanding few instances , Dr. Saloni is an
orthopedist and she in her past might have had various other operations , she
must be aware of the fact that there was no ventilator in her hospital and their
might arise a complication because of that .
10. Secondly, Dr. Saloni administered anaesthesia to the patient i.e. Prince without
the presence of any anaesthesist. According to the statements given by our
prime witness Rishabh Shukla there was no anaesthesist administered to the
operation theatre between the time of the operation i.e. 1 pm to 5 pm.
11. According to our postmortem report , it comes to a conclusion that the pre
anaesthetic sensitivity test was not done for the child , there might be a
possibility that the child might have been allergic towards anaesthesis.
12. Inspite of Dr. Saloni Khwaja being aware of the facts she performed them .

This maxim Res Ipsa Loquitur is used in cases when during the medical practice, an
act of negligence is committed and due to which the patient suffers harm. For Res Ipsa
Loquitur, to come into force, it needs to be shown that there is any object or thing which
proves the act of negligence directly and the actions of Dr. Saloni Khwaja itself proves the
act of negligency from her part.

II. Whether the case is maintainable?

If we take references of the various cases laid down
Spring Meadows Hospital v. Harjot Ahluwalia –
7
https://www.legalserviceindia.com/legal/article-4923-the-doctrine-of-res-ipsa-loquitur.html#:~:text=The
%20maxim%20Res%20Ipsa%20Loquitur,the%20cause%20of%20such%20accident.
In this case Court, held that when a young child was carried to a private hospital
by parents and treated by the doctors. Then not only just the child but his parents
are also treated as a consumer under the Consumer Protection Act. Hence, a
parent can claim the Compensation under the Consumer Protection Act.
Therefore, the court ruled in favor of the child’s parents and the child who was the
service’s beneficiary. The hospital argued that adequate care had indeed been
taken and hence would not be authorized to pay compensation for the mental
agony the parents have went through. They disputed that the parents would not
come under the definition of consumer in the consumer protection act. The court
accurately pointed out that this contention was false since the consumer’s
definition under the act includes parents.

Krishan Rao v Nikhil Super Speciality Hospital 2010 –

Krishna Rao, an officer in the malaria department, filed a complaint against the
hospital for negligently conducting his wife’s treatment. The hospital treated her
for typhoid and giving medication for the same instead of malaria fever. The
complainant’s wife complained of respiratory trouble. The complainant also
brought forward to the notice of the authorities that, artificial oxygen to the
patient. In Accordance to the complainant at that stage, artificial oxygen was not
necessary, but without ascertaining the patient’s actual necessity, the same was
given. As the treatment has been given for typhoid, the medicines would have
been for the exact cause and cure also has their side effect. They have been very
negligent while discharging their sole duty towards their patient.

When the judgement was given, Rao was given a compensation of Rs 2 lakhs. In
this case, the principle applied was Res Ipsa Loquitor, which means ‘the thing
speaks for itself. Thus, the Compensation was awarded to the plaintiff.

Indian Medical Association v. V.P. Shantha –The supreme court has reiterated
that services rendered to a patient by a medical practitioner (except where the
doctor cause services free of charge to every patient or under a contract of
personal service) by way of consultation, treatment and diagnosis, both surgical
and medical, would fall within the service as defined in section 2(1) (o) of the
Consumer Protection Act 1986. The judgment has faced a lot of opposition from
the people involved in the medical field. However, this judgment has come as a
wave of relief for all the consumers. With rampant increase in commercialization
of services, including medical services, the patient has now become a mere
consumer. This causes deterioration in the fiduciary relationship between a doctor
and his/her patient. This judgment that reaches the arms of the Consumer
Protection Act, 1986 to the medical profession will undoubtedly enable to keep a
check on the doctors to discharge their duties diligently, for it is always the
patient’s life at stake. It will make the method of treatment and surgery more
transparent. One negative aspect of this judgment is that it does not prescribe any
relief or Compensation for free medical services.

Mental anguish caused to patients and families because of the hospital’s actions
Spring Meadows Hospital and Anr. v Harjol Ahluwalia (1998) resulted in a
payout of Rs. 5 lacs for mental agony given to the parents of a child who became
totally disabled for life, in addition to a settlement of Rs. 12 lacs for the child. The
insurance was supposed to pay Rs. 12 lacs, while the hospital was supposed to pay
the rest. Despite the fact that the insurance company took a stance since the nurse
who gave the kid the adult dose of injection Lariago was unqualified, the Apex
Court did not address this issue while adjudicating negligent cases. As a result, it’s
essential to remember that physicians and hospitals should not only get a
Professional Indemnity Insurance Policy but also ensure that the nurses and other
hospital personnel who are hired as a result of it are qualified.

We would be able to conclude that consumer protection act also applies here as
Rishabh’s family were the consumers and the doctors were the service providers,
but because they were not able to provide their service they are liable for the
compensation.