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MEMORIAL ON BEHALF OF PROSECUTION

BEFORE THE JUDICIAL MAGISTRATE FIRST CLASS,

CHANDIGARH

CRIMINAL COMPLAINT NO.. …………/2019

IN THE MATTER OF

STATE………………………………………………………......PROSECUTION

VERSUS

DR. RAMESH KUMAR……………………………………………......ACCUSED NO. 1

VED BHUSHAN……………………………………………………..…ACCUSED NO. 2

MOST RESPECTFULLY SUBMITTED IN THE COURT OF SESSION, CHANDIGARH

RITIKA DEVI ALIAS RENUKA

ROLL NO. 218/15

B.Com LLB HONS. (D)

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MEMORIAL ON BEHALF OF COMPLAINANT

DRAWN AND FILED BY THE COUNSEL FOR THE COMPLAINANT

INDEX

S. NO PARTICULARS PAGENO.
1. LIST OF ABBREVIATION 3

2. INDEX OF AUTHORITIES 4

3. STATEMENT OF JURISDICTION 6

4. STATEMENT OF FACTS 7

5. STATEMENT OF ISSUES 8

1. WHETHER THE DOCTORS ARE LIABLE FOR

MEDICAL NEGLIGENCE UNDER SECTION 304A I.PC?
1.1 That the Doctors are negligent in performing their duty.
1.2 Gross negligence on the part of doctors.

2. WHETHER THE DRIVER IS LIABLE FOR RASH AND

NEGLIGENT DRIVING UNDER SECTION 304A ?
6. SUMMARY OF ISSUES 9

7. ARGUMENTS ADVANCED 10

8. PRAYER 15
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LIST OF ABBREVIATION

AIR All India Reporter

Anr. Another

Cr.LJ Criminal Law Journal

Hon’ble Honourable

Ltd. Limited

Ors. Others

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reporter

UP Uttar Pradesh

v. Versus
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INDEX OF AUTHORITIES

TABLE OF CASES

1. Dr. Laxman Balakrishna Joshi vs. Dr. Trimbark Babu Godbole

2. A.S Mittal .v. State of U.P
3. Kunal Saha v. AMRI (Advanced Medical Research institute )
4. State of Karnataka v. Satish
5. Cherubin Gregory v. State of Bihar

STATUTES REFERRED

 THE INDIAN EVIDENCE ACT, 1872

 THE CODE OF CRIMINAL PROCEDURE , 1973
 THE INDIAN PENAL CODE, 1860

BOOKS AND COMMENTARIES REFERED

 DR. AVTAR SINGH, PRINCIPLES OF THE LAW OF EVIDENCE (22nd ed. 2016).
 K.D GAUR PRINICIPLES OF CRIMINAL LAW (11THed 2016)
 P.S.A PILLAI CRIMINAL LAW (LATEST EDITION)
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WEBSITES REFERRED

 Manupatra Online Resources, http://www.manupatra.com.

 Lexis NexisAcademica, http://www.lexisnexis.com/academica.
 Lexis Nexis Legal, http://www.lexisnexis.com/in/legal.
 SCC Online, http://www.scconline.co.in.
 Oxford Dictionary, http://www.oxforddictionaries.com
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STATEMENT OF JURISDICTION

It is humbly submitted before this court the complainant has filed a complaint before this court
under section 304A I.P.C against the accused no. 1 and accused no. 2.

Therefore it is humbly submitted before this hon’ble court to take cognizance under section 26 of
CrPC and justice should be done with victim.

Section 26 of The Code Of Criminal Procedure, 1973

26. Courts by which offences are triable:- Subject to the other provisions of this Code,-

(a) any offence under the Indian Penal Code (45 of 1860 ), may be tried by-

i. the High Court, or

ii. the Court of Session, or
iii. any other Court by which such offence is shown in the First Schedule to be triable;

[ Provided that any (offence under section 376, section 376A, section 376B, section 376C,
section 376D or section 376E of the Indian Penal Code (45 of 1860) shall be tried as far as
practicable by a Court presided over by a woman.]

(b) any offence under any other law shall, when any Court is mentioned in this behalf in
such law, be tried by such Court and when no Court is so mentioned, may be tried by-

i. the High Court, or

ii. any other Court by which such offence is shown in the First Schedule to be triable.

The case is triable by the JUDICIAL MAGISTRATE FIRST CLASS CHANDIGARH under
Section 177 of the Code of Criminal Procedure, 1973.
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STATEMENT OF FACTS

ABOUT ACCIDENT

Sunita a student of government model school, sector 14 Chandigarh used to commute in CTU
bus from her home to school.

On 14/12/2018, she was waiting for the bus outside her school when a Chandigarh Transport
undertaking bus negligently driven by the driver Ved Bhushan crushed her foot.

NEGLIGENCE OF THE HOSPITAL

She was immediately rushed to the Hospital P.G.I for Treatment. Five days after the accident
gangrene developed in her leg.

Doctors on duty advised amputation of the affected leg and Dr. Ramesh Kumar assigned duty to
operate upon her leg immediately.

DEATH OF VICTIM

The doctor kept postponing the surgery on the ground of heavy rush of the Patients involved in
accidents and their treatment.

Due to heavy blood loss and gangrene Sunita died on 22/12/2018.

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STATEMENT OF ISSUES

1. WHETHER THE DOCTORS ARE LIABLE FOR MEDICAL NEGLIGENCE

UNDER SECTION 304A I.PC?

1.1 That the Doctors are negligent in performing their duty.

1.2 Gross negligence on the part of doctors.

2. WHETHER THE DRIVER IS LIABLE FOR RASH AND NEGLIGENT DRIVING

UNDER SECTION 304A?
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SUMMARY OF ISSUES

1. WHETHER THE DOCTORS ARE LIABLE FOR MEDICAL NEGLIGENCE

UNDER SECTION 304A I.PC?

IT IS HUMBLY SUBMITTED BEFORE THIS HONBLE COURT THAT DOCTORS

ARE GROSSLY NEGLIGENT IN PERFORMING THEIR DUTIES.

2. WHETHER THE DRIVER IS LIABLE FOR RASH AND NEGLIGENT DRIVING

UNDER SECTION 304A ?

THAT THE DRIVER IS LIABLE UNDER SECTION 304 A I.P.C FOR RASH AND
NEGLIGENT DRIVING.

DRIVING OF C.T.U DRIVER IS VERY HARSH AND THEREBY LEAD TO DEATH

OF VICTIM.
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ARGUMENT ADVANCED

1. WHETHER THE DOCTORS ARE LIABLE FOR MEDICAL NEGLIGENCE UNDER

SECTION 304A I.PC?

Medical Profession is one of the oldest professions and most humanitarian one. Doctors in India
are treated as second life savers after God. The standard of care from doctors and hospital
authority is expected to be more in comparison with other cases of negligence.

So proper care must be taken by the authorities and the doctors side to avoid medical negligence.

DEFINITION OF NEGLIGNECE

The Black law dictionary definition of negligence “conduct, whether of action or omission,
which may be declared and treated as negligence without any argument or proof as to the
particular surrounding circumstances, either because it is in violation of statue or valid municipal
ordinance or because it is so palpably opposed to the dictates of common prudence that it can be
said without hesitation or doubt that no careful person would have been guilty of it. As a general
rule, the violation of a public duty, enjoined by law for the protection of person or property, so
constitutes”.

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.
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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 Godbole1 and A.S Mittal .v. State of U.P2, in these
cases, different kind of negligence were introduced which were further question of qualifivation
for application in other cases.

There is an exception for medical negligence that if a doctor does not charge fees for his act then
he cannot be sued for medical negligence under Torts as per the definition of service which is
mentioned in sec 2(1) of Consumer Protection Act 1986.

Landmark Judgment on Medical Negligence

In medical negligence cases the first judgment that comes into our mind is one of the high
profile and most talked case with the highest amount of compensation granted till date.

Kunal Saha Vs AMRI (Advanced Medical Research institute ) famously known as

Anuradha Saha Case, this case was filed in 1998 with the allegation of medical negligence on
Kolkata based AMRI Hospital and three doctors namely Dr. Sukumar Mukherjee, Dr.
Baidyanath Halder and Dr. Balram Prasad. In simple layman term, the wife was suffering from
drug allergy and the doctors were negligent in prescribing medicine which further aggravated the
condition of patient and finally led to death. In brief this was the facts and circumstances of the
case, in this case the final verdict was given by the Supreme court on 24th October 2013 and a
compensation of around 6.08 crore for the death of his wife.

1
AIR 1969,SC 128
2
AIR 1989 SC 1570
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Conclusion

On the scrutiny of leading medical negligence cases of India, certain principles should be taken
into consideration while pronouncing the judgment in medical negligence cases.

1. Negligence should be guided upon the principle of reasonableness of common man

prudence and negligence must be established in order to give the compensation in
certain cases.

2. Medical profession requires certain degree of skill and knowledge, so the standard of
care in cases of medical professional is generally high and should also be taken into
account while giving the judgment.

3. A medical professional can be only held liable, when the standard of care is reasonably
is less than the reasonable care that should be taken from a competent practitioner in
that field.

4. When a choice has to be made between certain circumstance when there is higher risk
involved and greater success is involved and lesser risk with higher chances of failure,
the facts and circumstances of the individual case should be taken into the
consideration.

5. No negligence will apply on medical professional, when he performs his duty with the
utmost care that should be taken, and he had taken all the precaution.

IT IS HUMBLY SUBMITTED BEFORE THIS HONBLE COURT THAT

DOCTORS ARE GROSSLY NEGLIGENT IN PERFORMING THEIR DUTIES
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2. .WHETHER THE DRIVER IS LIABLE FOR RASH AND NEGLIGENT DRIVING

UNDER SECTION 304A?

Under Sections 304-A of the Indian Penal Code require a rash or negligent act as an ingredient.

“304-A. 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.”

In order to make an act negligent two things must be proved:

a. Existence of the duty

b. The corresponding breach of that duty causing death.

In the case of Chamman Lal 3, it was held that in order that rashness or negligence may be
criminal it must be of such a degree as to taking hazard knowing that the hazard was of such a
degree that injury was most likely to be caused thereby.

In the case of Cherubin Gregory v. State of Bihar4, the appellant was charged with an offence
under section 304A of the Indian Penal Code for causing the death of one Mst. Madilen by
contact with an electrically charged copper wire which he had fixed up at the back of his house
with a view to prevent the entry of intruders into his latrine.

The deceased Madilen was an inmate of a house near that of the accused. The wall of the latrine
of the house of the deceased had fallen down about a week prior to the day of the occurrence,
with the result that her latrine had become exposed to public view. Consequently the deceased ,
among others, started using the latrine of the accused. The accused resented this and made it
clear to them that they did not have his permission to use it.

3
1954 Cr LJ
4
AIR 1965 SC 205
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It was established that-

(1) The accused fixed up a copper wire across the passage leading up to his latrine.
(2) This wire was naked and uninsulated and carried current from the electrical wiring of his
house to which it was connected.
(3) There was no warning that the wire was live
(4) The deceased had previously managed to pass into the latrine without contacting the wire, but
one day as she came out her hand happened to touch it and she received a shock that proved
fatal and resulted in her death soon after.

The voltage of the current passing through the naked wire being high enough to be lethal,
there could be no dispute that charging it with current of that voltage was a rash act done in
reckless disregard of the serious consequences to people coming into contact with it for
which the accused is solely responsible under section 304A I.P.C.

As per the abovementioned authority, here in the facts of the case it is inferred that the bus was
being driven negligently by the bus driver. The act of the driver was so negligent as to cause the
accident which leads to the injury to the child. Had the driver been not negligent, the accident
could not have happened. The doctrine of reasonable care applies here. This doctrine imposes a
legal duty on the driver to drive the bus with care and this duty pertains a high degree when there
are persons of tender age.

To held the driver liable under Section 304A of IPC is valid on the basis of the words ‘‘rash and
negligent act”

Likewise the above authority, there was no intention to kill the other person but the act was so
negligent as to be covered under section 304A of IPC
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PRAYER

Wherefore in the light of issues raised, argument advanced, reasons given and authorities cited
this honorable forum may be pleased to:-

1. That the doctors are grossly negligent in performing their duties.

2. That the driver is liable under section 304A IPC for rash and negligent driving

And pass any order that this Hon’ble Court may be pleased to pass in the light of justice, equity
and good conscience.

All of which is most humbly and respectfully submitted.

Chandigarh s/d _______________

Dated 11.10.2019 Prosecution