An act of medical negligence, even resulting in death would not automatically constitute culpable homicide unless there is intent or knowledge that the death would be a likely consequence. Medical negligence cannot be equated with culpable homicide. I N THE judgement of the case – Dr K Rajgopalan (71) v. Regha (42) and State of Kerala, delivered on May 26, 2025, Dr Justice Kauser Edappagath, at the Kerala High Court at Ernakulam, has reiterated that if the evidence which the prosecution proposes to adduce to prove the guilt of the accused, even if accepted before the crossexamination or rebutted by defence, if any, cannot show that the accused has committed the offence , there will be no sufficient ground to proceed with the trial. The HC has stated further that the prosecution allegations, even if admitted as true in their entirety, would not make out an offence under section 304 of IPC. Hence, there is no sufficient ground for proceeding against the petitioner in this case.

 

The trial court went wrong by dismissing the petition for discharge filed by the petitioner. Criminal revision in this case was filed challenging the order passed by Assistant Sessions Court (Addl), Palakkad (the trial court), dismissing the application for discharge filed under section 227 of the CrPC the revision petitioner is the accused and the first respondent is the de facto complainant in the case SC 375/2015 pending before the trial court. The offence alleged against him is under section 304 IPC. The petitioner is a doctor by profession. In 2012, he was working as a visiting doctor at the Kerala Nursing Home at the Palakkad. On May 8,2012, the petitioner performed surgery on a child namely, Athira, the ten years old daughter of the first respondent, for appendicitis. The petitioner himself administered spinal anaesthesia to the child just before the surgery. He did not seek the service of an anaesthetist. During the surgery, the child developed complications due to the anaesthesia. The surgery started at 3.35 pm. At 3.45 pm, the oxygen saturation came down to 80% and the child developed cardiac arrest. At 4 pm, the child was declared dead. On the same day, the Palakkad South Police registered a crime based on the statement given by the first respondent alleging medical negligence on the part of the petitioner, who conducted the surgery and administered the anaesthesia.

 

The Police, after investigation, filed the final report against the petitioner, alleging an offence under section 304 IPC. The allegation in the final report is that the petitioner knowing well that conducting surgery without assistance of an anaesthetist may lead to complications and even result in the death of the child and conducted the surgery on the child who died due to anaesthesia complications and thereby committed the offence. The petitioner appeared before the trial court and was released on bail. He filed a petition as Cr MP 101/2016 under section 227 of CrPC for discharge. The trial court after hearing both sides, dismissed the petition as per the impugned order. The counsel for the petitioner submitted that a close reading of the FIR, the FIS, the statements of the witnesses and documents on record reveal that there is no sufficient ground for proceeding against the revision petitioner. Not even a prima facie case, even after the final report is made out by the prosecution for accusing the petitioner of the offence under section 304 IPC. The counsel had also submitted that the sole allegation that the petitioner administered anaesthesia by himself without availing the services on an anesthetist itself cannot be taken as a ground for implicating him in an offence punishable under section 304 IPC. The petitioner cannot be said to have done so with the knowledge that his act was likely to cause the patient’s death.

 

The trial court ought to have discharged him. According to the HC, the crucial question is whether the act of the petitioner would fall within the contours of section 304 IPC, has two parts. Both the parts deal with culpable homicide, not amounting to murder when the act is done without any intention to cause death or bodily injury, as is likely to cause death. The second part deals with culpable homicide not amounting to murder when the act is done without any intention to cause death or bodily injury, as is likely to cause death but with the knowledge that his act is likely to cause death. A person responsible for a reckless, or rash or negligent act which causes death which he had knowledge as a reasonable man that such act was dangerous enough to lead to some untoward thing and the death was likely to be caused, may be attributed with the knowledge of the consequence and may be fastened with the culpability of homicide not amounting to murder punishable under section 304 Part II of IPC. At the instance of the investigating agency, an Expert Medical Board was constituted, which was headed by the District Medical Officer, Palakkad. In its report the said Board’s conclusion is that the child had developed complications of spinal anaesthesia , that the surgeon could not manage it, and therefore, he was negligent in his actions. The police had recorded the statement of the Deputy Director of the District Medical Officer’s office. He had also stated that the patient died due to the complications of the spinal anaesthesia, and the negligence was attributed to the petitioner, who treated the child. These are the two incriminating pieces of evidence available in the final report against the petitioner. In both the reports, it has been stated that the petitioner was negligent. However, an act of medical negligence, even resulting in death would not automatically constitute culpable homicide unless there is intent or knowledge that the death would be a likely consequence. Medical negligence cannot be equated with culpable homicide. In medical negligence cases, if the death is due to failure in exercising reasonable care or a breach of duty by a medical professional, section 304-A may be invoked. The knowledge contemplated under sections 299 and 304 of IPC is of a higher degree. Knowledge of the mere possibility is not the knowledge envisaged (Philips Thomas v. State of Kerala, 2023(1) KLT 765). The materials on record do not even prima facie suggest this. In the year 1974, the petitioner had also worked as anaesthetist. The offence under section 304 of IPC cannot be sustained. In result, the Kerala High Court has discharged the petitioner, set aside the impugned order and allowed the criminal revision petition.