Case Note & Summary
The case involves a criminal revision application filed by Dr. P.B. Desai, the original accused no.1, challenging his conviction under Section 338 read with Section 109 of the Indian Penal Code (IPC) for causing grievous hurt by a rash act. The complainant, Padmachandra Singhi, initiated prosecution after his wife Smt. Leela, who was suffering from inoperable cervical cancer, was operated upon by Dr. Desai at Bombay Hospital on 22nd December 1987. Despite being informed by New York doctors that the cancer was inoperable, Dr. Desai insisted on surgery. During the operation, Dr. Desai did not personally examine the patient and, after being called by other doctors, ordered the abdomen to be closed without performing the surgery, citing profuse oozing and plastering of intestines. The patient remained hospitalized from 9th December 1987 to 4th May 1988 under Dr. Desai's care. The trial court convicted Dr. Desai, and the appellate court confirmed the conviction. The High Court examined the evidence, including the testimony of the complainant and medical records, and found that Dr. Desai's actions were rash and negligent, causing grievous hurt to the patient. The court noted that Dr. Desai, as a renowned oncologist, should have known better than to proceed with surgery on an inoperable patient and then abandon it. The conviction was upheld, and the sentence of simple imprisonment till rising of the court and a fine of Rs. 50,000/- as compensation was maintained.
Headnote
A) Criminal Law - Rash Act - Grievous Hurt - Section 338 read with Section 109 Indian Penal Code, 1860 - Medical Negligence - The applicant, an oncologist, performed an operation on a cancer patient despite being aware of her inoperable condition, and abandoned the procedure after opening the abdomen, causing the patient to suffer prolonged hospitalization and pain. The court held that the act of proceeding with surgery without proper examination and then abandoning it constituted a rash act causing grievous hurt, and the conviction was upheld. (Paras 1-24)
Issue of Consideration
Whether the conviction of the applicant under Section 338 read with Section 109 IPC for causing grievous hurt by a rash act is sustainable on the evidence on record.
Final Decision
The High Court dismissed the criminal revision application and upheld the conviction and sentence of the applicant under Section 338 read with Section 109 IPC.
Law Points
- Criminal law
- Medical negligence
- Rash act
- Grievous hurt
- Abetment
- Section 338 IPC
- Section 109 IPC
Case Details
2012 LawText (BOM) (10) 106
Criminal Revision Application No.166 of 2012
Mr. Shirish Gupte, Sr. Advocate @ Mr. Subodh Desai for Applicant; Mrs. U.V. Kejariwal, APP for State; Mr. P.C. Singh, Complainant-Respondent no.2 in person
The State of Maharashtra and Mr. Padmachandra Singhi
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Nature of Litigation
Criminal revision application against conviction for offence under Section 338 read with Section 109 IPC.
Remedy Sought
The applicant sought to quash the conviction and sentence recorded by the trial court and confirmed by the appellate court.
Filing Reason
The applicant was convicted for causing grievous hurt by a rash act during a surgical operation on the complainant's wife.
Previous Decisions
The trial court convicted the applicant on 5.7.2011, and the appellate court confirmed the conviction in criminal appeal no.432 of 2011.
Issues
Whether the conviction under Section 338 read with Section 109 IPC is sustainable on the evidence on record.
Submissions/Arguments
The applicant argued that the operation was necessary and that he acted in good faith, and that the patient's condition was already critical.
The respondent argued that the applicant acted rashly by proceeding with surgery despite knowing the patient's inoperable condition and then abandoning the procedure, causing prolonged hospitalization and suffering.
Ratio Decidendi
A medical professional who proceeds with a surgical operation despite knowing the patient's inoperable condition and then abandons the procedure without proper examination, causing prolonged hospitalization and suffering, commits a rash act amounting to grievous hurt under Section 338 IPC, and the conviction is sustainable.
Judgment Excerpts
The original accused no.1 (Dr.Desai) impugns conviction recorded by the learned Additional Chief Metropolitan Magistrate, 47th Court, Esplanade, Mumbai on 5.7.2011 and confirmed in criminal appeal no.432 of 2011 by the learned Additional Sessions Judge for an offence under Section338 read with Section 109 of IPC, directing to suffer SI till rising of the Court and to pay Rs.50,000/- as and by way of compensation, in default to suffer SI for Three months.
Procedural History
The trial court convicted the applicant on 5.7.2011. The applicant appealed to the Sessions Court, which confirmed the conviction. The applicant then filed a criminal revision application before the High Court, which was dismissed on 15.10.2012.
Acts & Sections
- Indian Penal Code, 1860: 338, 109
