VINU V.GOPAL Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner is the 1st accused in Crime No.10 of 2021 of the Crime Branch, CU-II Unit, Ernakulam registered for the offence punishable under Sec. 304A of IPC. The case originated on the death of a patient named Shafiq at the Government Medical College Hospital, Kottayam. The petitioner was the night duty on-call Medical Officer of the Neuro Surgery Department when Shafiq was admitted in the Medical College Hospital. The essential facts are as under;

(2.) Advocate Vishnu Jayapalan, appearing for the petitioner contended that, even if the prosecution allegations are accepted in their entirety the offence under Sec. 304A will not be attracted. In support of his argument, the learned counsel made the following submissions;

(3.) Referring to the Expert Panel Report, it is pointed out that the panel had only opined that the patient had not received reasonable standard of care while undergoing treatment at the Government Medical College. Being so, arraying the petitioner as an accused on the premise that he was the on-call Medical Officer is unsustainable. Reliance is placed on the decision in Jacob Mathew v. State of Punjab and Another [(2005) 6 SCC 1] to contend that, for negligence to amount to an offence, the element of mens rea must be shown and to prosecute a medical practitioner for the offence under Sec. 304A of IPC, there must be gross negligence. Finally it is submitted that, in the appeal filed by the petitioner against the Expert Panel Report, Annexure A23 opinion has been rendered by the State Level Apex Expert Committee, unequivocally holding that there was no gross and culpable negligence from the part of the Doctors at the Medical College Hospital in giving treatment to Shafiq. It is hence contended that further prosecution of the petitioner is nothing but an abuse of process of court.