Short Note : 1. The applicant, Dr. S. K. Dutta had challenged his conviction under section 338, IPC and a sentence of fine of Rs. 1,000/-. Applicant Dr. S.K. Dutta was Assistant Medical Officer at Railway Hospital Bilaspur, while the co-accused F. M. Stifies was the nurse there, One Mrs. Barbara Chudius was expecting her third child and after completion of the period of gestation, she went to the Railway Hospital for Medical check up on 20-3-1970 as she was not getting the requisite labour pain. Mrs. Claudius was admitted in the Railway Hospital and caesarean operation was performed by Dr. Dutta on 22-3-1970 Next day she experienced pain Other doctors including the then Civil Surgeon of Bilaspur Dr. M. J. Kamath (P. W. 1) were consulted. During the second operation which was performed by Civil Surgeon Dr. Kamath he found loops of small guts adherent to left paracolaic gutter where a swelled off cavity containing pus and swab was found. The pus was drained up and the swab was removed but the patient died on 16-4-1970. According to Dr. Kamath the patient died due to virus infection as a complication of the second operation. According to him Dr. Dutta was negligent in leaving behind the swab inside the abdomen after terminating the operation. His opinion had been confirmed by Dr. K. D. Kaushal, Professor and head of the Department of Surgery of J. N. Medical College, Raipur. 2. Held : In the present case Some experts have been examined in this regard. According to Dr. Kamath (P. W. 1) who did the second operation of Mrs. Claudius, it is the duty of the nurse to count swab before operation stared and before abdomen is closed. The surgeon is overall responsible. It is also the duty of the surgeon to remove swab from the operated area According to Dr. Kaushal (P. W. 9) it is the responsibility of the doctor in taking out all the swabs. As such the findings of the Courts below that it was the primary responsibility of the applicant, as the operating surgeon, to search for the swab and he was grossly negligent for leaving behind the swab inside the abdomen after completing the operation have to be affirmed for the offence under section 338 of the Indian Penal Code. State Government M. P. v. Bhawnesh Kumar, AIR 1958 JLJ 331 . State Government M. P. v. Bhawnesh Kumar, AIR 1958 JLJ 331 . In R. V. Battsman (1925) 10 Criminal Appeal Reporter 8, Andrews v. Director of Public Prosecutions, 1937 A C. 576, Laxman v. Trimbak, AIR 1969 SC 128 , Medical Negligence (1957 Edn) by Lord Nathon, Page 77, Mahaon v. Gaboroe (1939) 1 All. E. R. 535, Urrg v. Bierer, 1955 the Times March 16th, Cooper v. Navill, The Times March 24, 1961, relied on. Revision dismissed.