IN THE HON’BLE HIGH COURT OF GUJARAT AT AHMEDABAD

DISTRICT: AHMEDABAD

Memorial for Appellants

CRIMINAL APPEAL NO. XYZ OF 2023

WITH
CRIMINAL APPEAL NO. PQR OF 2023

1. Dr. Vyomesh Mishra

2. Dr. Kuldeep Singh ………………………………………….Appellants
(Original Accused Nos. 1 & 2)

Vs
1. Mahesh Patel
2. State of Gujarat………………………………………………Respondents
(Resp. No. 1 Original Complainant)

Appeal u/s. 374 of the Code of Criminal Procedure

against the judgment and order of the Sessions
Court passed in Criminal Case No. ABC of 2020
passed on April 10, 2022.
And
Appeal u/s 372 of the Code of Criminal Procedure
against the judgment and order of the Sessions
Court passed in Criminal Case No. ANC of 2020
passed on April 10, 2022.
 TABLE OF CONTENTS

Table of Contents ……………………………………………03

List of Abbreviations ……………………………………………04
Index of Authorities ……………………………………………05
Statement of Jurisdiction ……………………………………………06
Statement of Facts ……………………………………………07
Statement of Issues ….………………………………………10
Summary of Arguments …………………………………………11
Prayer …………………………………………12
 LIST OF ABBREVIATIONS

AIR – All India Reporter

Art. - Article
Cr. L. J. – Criminal law Journal
CrPC – Criminal Procedure Code, 1973
Dr. – Doctor
FIR – First Information Report
Hon’ble – Honorable
IPC – Indian Penal Code, 1860
SC – Supreme Court
u/s. – under section
V/s. - Versus
 INDEX OF AUTHORITIES

Books
B. M. Gandhi, Indian Penal Code, 3rd Edition. (2014)

Case Laws
Jacob Mathew v. State of Punjab and Anr. 2005 AIR SCW 3685 : AIR2005
SC 3180.

Test
Bolam Test.

Statutes and Other Authorities

Indian Penal Code, 1860
The Code of Criminal Procedure, 1974
Indian Evidence Act 1872
 STATEMENT OF JURISDICTION

The appellants humbly submit to this Hon’ble Court that the present appeal is
filed u/s. 374 of the CrPC (Criminal Procedure Code) 1973, against the
judgment and order of the Sessions Court, Ahmedabad and hence this Hon’ble
Court is having jurisdiction and power to entertain and decide the present
appeal.
 STATEMENT OF FACTS

1. Mr. Mahesh Patel, original complainant is a government servant having upper

middle class background. He has a wife named Madhvi and the only son named
Keval in his small family. His son was studying in 7th standard at English
Medium School of Ahmedabad. Keval was considered to be one of the brilliant
students of the class and he was also a captain of the football team of the
school.

2. In, 2019, Keval returned from the practice of football from the school in
vacation, he began throwing fit and losing consciousness at sudden intervals.
His father immediately consulted one of the reputed Neuro-Physician Dr.
Kuldeep Singh at the Longlife Charitable Trust Hospital. It is one of the reputed
hospitals in the entire city for providing the best treatment.

3. At the time of examination, the doctor diagnosed that child was suffering from
epilepsy. After proper examination doctor prescribed the best treatment
involving the administration of two well-known drugs for epilepsy – 1. Zentor
and 2. Gardiol. The said treatment is for a period of 8 months and along with
this the child is advised to discontinue his school for at least period of 2-3
months and take a rest during the treatment.

4. Because of continuous insistence of Keval his father allowed him to go to the

school for attending classes. Now due to this the medicine did not serve its
object and hence doctor increased the dosage of the frequency of the said
medicines. However, the condition of worsened and the frequency of
convulsion grew rapid. As a result the child was constrained to precede leave
from the school from 16th August 2019.
5. During the time of December 2019, Covid-19 began to spread all over the
world, including India. Even at such times, Keval’s studies continued from
home. By beginning of 2020 the studies shifted on online mode. After that,
Keval appeared in online exam which he failed because of his poor health.
Doctors advised parents to discontinue his school and give him proper rest.
Even after that, Keval’s online studies continued.

6. The child had his evening dosage of prescribed drug Gardiol on 19 th August,
2019 at about 10.30 pm, he developed severe convulsions and he suddenly lost
his consciousness and collapsed. Immediately father called Dr. Kuldeep Singh at
his residence. Dr. Singh expressed his inability to come because he was
quarantined as he came into contact with Covid-19 positive patients, but advised
him to admit his son to the reputed Longlife Charitable Hospital. By following
the advice of Dr. Singh, his father immediately admitted the child at the
hospital.

7. At the night of 19th August 2019, a young doctor named Dr. Vyomesh Mishra
pursuing his internship at the hospital on duty. He examined the patient and
looking to the serious condition he directed child to be taken to ICU. As
looking to the critical condition of the child, the hospital authorities agreed to
provide treatment upon signing the consent from stating that the Hospital shall
not be held liable or responsible in whole or part for any future consequences if
at all developed to patient Keval during his treatment at the hospital. Desperate
to save his son, Mr. Mahesh Patel was constrained to sign the aforesaid consent
form of the hospital.

8. Before the father could appraise Dr. Vyomesh Mishra about the previous case
history of child and the treatment provided to him, Dr. Vyomesh Mishra
administered a sedative called Epitaphenol, it is given in case of severe
 epileptic attack. Just after the application of said medicine, father saw his son
finding difficult to breath and was gasping for breath. Soon he lost his
consciousness. Mahesh Patel after seen this called the Dr. Mishra to examine his
son. But Dr, Mishra explained him that it was not unconsciousness, but sleep
due to sedative medicine. As father dissatisfied with the explanation he called
Dr. Kuldeep Singh at his residence again at 3.30 am on 20th August 2009,
and requested to come to the hospital to examine his son. But Dr. Kuldeep Singh
refused and showed his inability.

9. The child was expired in the hospital on 20th August 2009, at 6.00 am. The
autopsy revealed myocardial infarction as the cause of death. This was a
resultant effect of adverse reaction of Epitaphenol drug with Gardial, which
was prescribed by Dr. Kuldeep Singh.

10. The FIR was lodged on 23rd August 2019, by his father in crime Register No.
II/XXX/2019 at Navrangpura Police Station, Ahmedabaad against both the
Doctors’ for having committed offences punishable u/s. 302, 304 and 304-A of
the Indian Penal Code. The charge-sheet was filed after investigation by the
Officer in charge at Navrangpura Police Station and the magistrate committed
the case to the Sessions Court for trial after framing the charges u/s. 302, 304 &
304-A of the Indian Penal Code.

11. The learned Sessions judge by his judgment and order found both the accused
personally guilt for having committed offences punishable under section 304
part II of the Indian Penal and punished them with rigorous imprisonment for
10 years and fine of Rs. 2 lacs each.
 STATEMENT OF ISSUES

1. Is there any presence of intention to cause the death of child in doctors?

2. Whether Dr. Kuldeep Singh and Dr. Vyomesh Mishra failed to give proper
treatment?

3. Can both Dr. Kuldeep singh and Dr. Vyomesh Mishra be held responsible for
medical negligency?
 SUMMARY OF ARGUMENTS

1. The council on behalf of appellants humbly submits that, the ingredients of

section 304 under which the punishment is awarded are not being fulfilled.
There is an absence of criminal intent means a purpose or design of doing an act
forbidden by criminal law. Under the section 80 of Indian Penal Code, 1860, the
death of the child (Keval) should be considered as an accidental death.
According to that, nothing is an offence, which is done by 1) accident or
misfortune and 2) without any criminal intention or knowledge of doing of:
a) Lawful act, b) in lawful manner, c) by lawful means and d) with proper care
and caution.

2. Dr. Kuldeep Singh, a reputed neuro- physician was always attentive in

regards to Keval’s condition. Time and again, he advised parents to give him
enough rest and prescribed medicine. Thinking in respect of Keval’s life, he
refused to attend him personally when he was quarantined at his home.

3. Dr, Vyomesh Mishra was also committed to cure Keval’s health. He

examined him and directed him to I.C.U.. The Bolam test determines that
whether the actions of the medic are in the line with the actions of other medics
who are in their position. The Bolam test is also the standard test which is used
to establish whether the duty of care has been breached or not. A legal
obligation to provide a reasonable standard of care to the patients is known as
duty of care. Dr. Vyomesh Mishra has not breached the duty of care.

4. The parents of Keval were negligent about the health of their child from the
beginning. They ignored the times when he was advised to rest and did not let
him take proper rest when required. They left him at school recklessly, without
informing the school about his medical condition. Even during the resting
periods, his studies were continued never giving him a scope for curing. The
parents were inattentive regarding the seriousness of their child’s illness. They
lacked in taking ample care of their child. Doctors cannot be blamed when
parents are negligent about their children’s health condition. There’s no doctor
who wants the stigma of being medically irresponsible stick to them.
 PRAYER

In the light of aforesaid facts and circumstances of this case, it is most

respectfully prayed that the Hon’ble Court may be pleased:

a) To quash and set aside the judgment and order pronounced by the
Hon’ble Sessions Court that found Appellant No. 1 & Appellant No. 2
guilty for having committed an offence punishable under Section 304
of the Indian Penal Code and acquit the appellants.

b) To pass any other or further order(s) as this court may deem fit and
proper in favor of appellant, in the interest of justice.

Date: xx/xx/20xx
Place: Ahmedabad.