( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 91 OF 1999 The State of Maharashtra .. Appellant Through CIDCO Police Station, Aurangabad. Versus Dr. Rajendra s/o. Ramkisan Jaiswal, .. Respondent Age. 35 years, Occ. Medical Practitioner, R/o. N-5, Bajrang Chowk, CIDCO, Aurangabad. Shri K.M. Suryawanshi, A.P.P. for the appellant. Shri N.S. Ghanekar, Advocate for sole respondent. CORAM : P.R. BORKAR,J. DATED : 29.01.2010 ORAL JUDGMENT :- 1. This is an appeal preferred by the State being aggrieved by the order of acquittal passed by the Additional ( 2 ) Sessions Judge, Aurangabad, in Sessions Case No. 286 of 1994, decided on 05.08.1998, whereby the respondent is acquitted of offences punishable under section 315, 304-A and 337 of the Indian Penal Code. 2. Briefly stated facts giving rise to this appeal may be stated as below :- . Respondent/accused is a medical practitioner, running a private nursing home by name “Janki Hospital” in CIDCO area of Aurangabad. The wife of complainant Subhash Balwant Desai, by name, Shubhangi was admitted in the hospital of the respondent for delivery. She was pregnant for fourth time. It is case of the prosecution that on 19.05.1993 Shubhangi had labour pains. Therefore, she was admitted in the hospital of the respondent at about 11.00 a.m. The Doctor prescribed certain medicines. They were brought and administered to Shubhangi. Shubhangi was also administered saline. At about 3.30 p.m. labour pains were increased and therefore Shubhangi was shifted to the delivery room. At around 4.45 p.m. condition of Shubhangi started deteriorating and the doctor told the complainant – husband ( 3 ) of Shubhangi that Shubhangi had to be shifted to the Government Medical College and Hospital, Aurangabad, popularly known as “Ghati Hospital”. In a private car Shubhangi was shifted to Ghati Hospital, but inspite of treatment, Shubhangi expired at about 8.30 p.m. The child in her womb also died. Thereafter, information was given to Police. Police came and drew inquest panchanama. The postmortem was performed by P.W.4-Dr. Jinturkar. On 21.05.1993 P.W.1-Subhash Desai lodged complaint at the police station. Thereafter, investigation was carried out and finally charge-sheet was sent against the accused/respondent for committing offences punishable under sections 315, 304 and 337 of the I.P.C. 3. In all six witnesses were examined by the prosecution. The learned Sessions Judge came to a conclusion that the offences are not proved and therefore he passed the order of acquittal. It is this order which is challenged in this appeal. 4. Heard A.P.P. Shri K.M. Suryawanshi for the appellant/State and Adv. Shri N.S. Ghanekar for the ( 4 ) respondent. 5. So far as offence punishable under section 315 of the I.P.C. is concerned, the offence is committed by a person who before the birth of any child does any act with the intention of thereby preventing that child from being born alive or causing it to die after its birth, and does by such act prevent that child from being born alive, or causes it to die after its birth, if such act be not caused in good faith for the purpose of saving the life of the mother. The offence punishable under section 304-A of the I.P.C. is causing death of any person by doing any rash or negligent act not amounting to culpable homicide. The offence under section 337 of the I.P.C. is causing hurt to any person by doing act so rashly and negligently as to endanger human life, or the personal safety of others. 6. It is prosecution case that the respondent negligently administered medicine called ‘Oxytocin’, which is medically also known as ‘Pitocin’. P.W.3-Dr. Bhavthankar, who was head of the department in the Ghati Hospital, Aurangabad, has stated that due to administering said ( 5 ) medicine there was rupture of uterus and the medicine ought to have been administered judiciously. On the other hand it is argued on behalf of the respondent that Oxytocin/Pitocin is administered for facilitating delivery and it was used in proper doses and there is no evidence that the respondent was negligent in administering Oxytocin. It is not disputed that respondent is a Doctor by profession having degrees of M.B.B.S., D.C.H., M.D. (Gyn). He also runs a hospital by name “Janki Hospital”. 7. It has come in the evidence of P.W.1-Subhash Desai that the respondent prescribed certain medicines and he brought them. At about 3.30 p.m. labour pains of Shubhangi were increased and therefore she was shifted to labour room. Thereafter, the respondent advised P.W.1-Subhash Desai to shift Shubhangi to Government Hospital and accordingly Shubhangi was taken to Government Hospital at about 6.30 p.m. but she expired at 8.30 p.m. In order to prove that accused used Pitocin injection, there is evidence of P.W.1-Subhash Desai, who produced a cash memo showing purchase of drug Oxytocin. The cash memo is given Exh.17. This document is admitted and the accused/respondent does not deny that the ( 6 ) prescription was given for purchasing injection Oxytocin. Thus, it is proved that for treatment of Shubhangi, Oxytocin injection was procured. 8. It is also admitted by both P.W.3-Dr. Bhavthankar and P.W.5-Dr. Rapatwar, who were working in Government Medical College and Hospital, Aurangabad, that said injection Pitocin is given for enhancement of labour pains. So, the learned Sessions Judge has come to a conclusion that Pitocin might have been used for facilitating the delivery. It is also not disputed that Shubhangi was a case of multi-gravida. It has also come in the evidence that Oxitocin is used in quantity of 5 to 10 IU for postpartem hemorrhage and quantity of drug purchased was 1.00 IU. 9. It has come in the evidence of Dr. Bhavthankar, who is examined as the Head of Department of Gynecology and also as expert that Pitocin injection if used injudiciously, it could cause rupture of uterus. However, he admitted that in selected multi-gravida cases, Pitocin is used with caution. Therefore, use of the drug by the respondent itself cannot be said to be unwarranted. ( 7 ) 10. After going through the entire record and after hearing arguments of both sides, it does not appear that there is evidence to show that the respondent used Oxytocin injudiciously and that caused rupture of uterus, which was cause of death of Shubhangi. It has come in evidence that besides injudicious use of Oxytocin there could be other reason for rupture of uterus and they are not positively ruled out. 11. Second part of the argument that was advanced before me is that the accused showed negligence in not diagnosing rupture of uterus and not taking appropriate action by way of operation or otherwise. 12. P.W.5-Dr. Rapatwar in his deposition at Exh.32 has given signs and symptoms of threatened rupture of uterus. They are reproduced by the Sessions Judge in para 21 of his judgment. However, evidence of P.W.5-Dr. Rapatwar clearly indicates that the signs and symptoms stated by him regarding threatened rupture are classical signs of threatened rupture. He also admitted that as there was no obstruction to the foetus there would not be classical signs and symptoms of threatened rupture. He also admitted that multi-gravida patients usually take 6 to 8 hours for delivery. So, cross- ( 8 ) examination of Dr. Rapatwar shows that all classical symptoms and signs may not always be present. It is also admitted in the present case that it was not possible to distinguish between signs of threatened rupture and signs of acute labour pains before delivery. 13. That takes us to last limb of argument that the accused/respondent has not taken necessary precautions and omitted to operate Shubhangi resulting in her death. It is also pointed out that rupture occurred at sometime around 5.30 p.m. and Shubhangi was shifted to the Government Hospital at about 6.30 p.m. P.W.3-Dr. Bhavthankar in his cross-examination has stated, what should be done in case of rupture of uterus. In para 12 of his deposition Dr. Bhavthankar has agreed with following passage under heading ‘Immediate Treatment’ from page 704 in a book by Pitchard and Mc Donald, titled as “William’s Obstetrics”, 17th Edition. (xerox copy is at Exh.27) - “The life of the woman will depend most often on the speed and efficiency with which hypovolemia can be corrected and hemorrhage controlled. Whenever rupture of the uterus is diagnosed, it is mandatory that the following ( 9 ) functions be carried out immediately and simultaneously : (1) two effective intravenous infusion systems must be established, and lactated Ringer solution or similar electrolyte containing solutions started; (2) compatible or at least type specific whole blood, must be obtained in large quantities (3 liters to start), and it must be infused vigorously as soon as possible; and (3) a surgical team, including an anesthesiologist must be assembled. The hypovolemia may not be correctable until arterial bleeding has been brought under control surgically. Therefore, delay in operating is contraindicated. Instead blood must be infused vigorously and the laparotomy begun. In desperate cases, compression applied to the arota may help to reduce the bleeding. Oxytocin administered intravenously may incite contraction of the myometrium and in turn vessel constriction, thereby reducing the bleeding. Clamping the ovarian vessels immediately adjacent to the uterus will help to conserve blood. Techniques for monitoring the adequacy of the circulation, blood and blood- fraction replacement therapy and the recognition and treatment of coagulation defects are considered in detail in Chapter 21. “ (sic) . So, above said is the immediate treatment that is expected from a Doctor. 14. In this case, it is argued that as per treatment recommended, large quantity of blood has to be infused vigorously and surgical team is also required. P.W.5- Rapatwar has admitted that the Government Hospital is equipped with all facilities for emergency surgery. It was ( 10 ) argued by the learned advocate for the respondent that it might not have been possible for the respondent to collect so much quantity of blood and team of Doctors and the facilities which are required for emergency treatment required in case of rupture of uterus, so he thought it fit to shift the patient to the Government Hospital. He not only just advised shifting of Shubhangi to the Government Hospital, but has made all necessary arrangements and himself accompanied Shubhangi. In his deposition P.W.1-Subhash Desai has stated in the examination-in-chief that the Doctor (the respondent) told him that uterus had ruptured. He advised him that he should take his wife Shubhangi immediately to Ghati Hospital and thereafter he immediately took Shubhangi in car of one Benade – friend of respondent/ accused and Shubhangi was admitted in the Government Hospital at about 6.30 p.m. The Respondent/Doctor himself took initiative in taking wife of the complainant to Ghati Hospital. In cross-examination P.W. 1-Subhash Desai admitted that in the evening his wife had severe labour pains, so she was shifted to labour room. When his wife was shifted to labour room, she walked herself from bed to the labour room and the doctor told him that there was nothing to worry. This was at about 4.00 p.m. At about 6.05 ( 11 ) p.m. the Doctor told P.W.1-Subhash for the first time that health of Shubhangi was deteriorating. It is also admitted that after arrival of car, the respondent did not waste any time for shifting Shubhangi to the Govt. Hospital. It took about 5-6 minuts to bring the car. On way to Government Hospital also, Shubhangi was continuously administered saline. In the Government Hospital, Shubhangi was carried on a stretcher. Afterwards, throughout the respondent was present. Directly Shubhangi was admitted in labour room of Ghati Hospital. P.W.1-Subhash Desai also admitted that though Shubhangi was timely admitted in the Government Hospital, she expired. 15. The learned advocate for the respondent has taken me through the statement of P.W.5-Dr. Rapatwar, who was working as a lecturer in the Government Medical College. His examination-in-chief indicates as if he was present when Shubhangi was admitted in the hospital at about 6.45 p.m. and thereafter continuously attended her. But, his cross- examination in para 4 clearly shows that he was in the labour room from 4.00 p.m. to 6.15 p.m. Then, he went home. While he was at home, he was contacted by a resident doctor and ( 12 ) informed about the emergency. He received phone call at about 7.00 p.m. Thereafter, he drove his way to the hospital on a scooter. His further cross-examination in, para 5, clearly indicated that he had seen the patient for the first time at about 7.30 p.m. and he made endorsement regarding examining the patient at about 7.45 p.m. He also admitted that, there is nothing on record to show that he made any noting that he met respondent Dr. Jaiswal and Dr. Jaiswal told him that he had administered Pitocin injection to the patient. So, that raises question regarding truth of examination-in-chief of P.W.5-Dr. Rapatwar. Be that as it may. 16. Above-said evidence and discussion clearly indicates that the accused/respondent has done all that was within his power and it cannot be said that he was rash or negligent. Therefore, he deserves acquittal for the offences punishable under sections 337 and 304-A of the I.P.C. Here, I rely on the standard of proof required to prove medical negligence as laid down in cases of Martin F. D’Souza V/s. Mohd. Ishfaq, (2009) 3 S.C.C.1 and Jacob Mathew V/s. State of Punjab and anr., (2005) 6 S.C.C. 1. ( 13 ) 17. So far as offence punishable under section 315 of the I.P.C. is concerned, it is rightly observed by the learned Sessions Judge in para 13 of his judgment that it was not case of anybody that death had occurred due to some intentional act. Intention is one of the major ingredient of section 315. Wording of section 315 of the I.P.C. itself shows that whoever before the birth of any child does any act with the intention of thereby preventing that child from being born alive or causing it to die after its birth, and does by such act prevent that child from being born alive, or causes it to die after its birth, shall, if such act be not caused in good faith for the purpose of saving the life of the mother be punished with imprisonment. In this case the patient was admitted for delivery. During course of delivery there was rupture of uterus which led to bleeding and subsequent death of the patient and the child. So, it is not case of any prosecution witness that the respondent deliberately committed offence punishable under section 315 of the I.P.C. 18. For all aforesaid reasons, in my opinion, this ( 14 ) appeal must fail. In the result, the order of acquittal passed by the Additional Sessions Judge, Aurangabad, is hereby confirmed and the appeal is dismissed. The bail-bond of the respondent stands discharged. [P.R. BORKAR,J.] snk/2010/JAN10/crap91.99