Judgment :- (Prayer: Criminal Appeal against the judgment of conviction and sentence in S.C. No. 160/97 on the file of Subordinate Judge, Chidambaram dated 17.3.99.) This appeal has been preferred by a qualified medical practitioner holding M.B.B.S degree and also a Civil Assistant Surgeon of Government Kamaraj Hospital against the judgment of conviction and sentence passed by the learned Assistant Sessions Judge, Chidambaram made in S.C. No. 160/97 dated 17.3.99 convicting him under Section 304(ii) I.P.C. and sentencing him to 10 years rigorous imprisonment and to pay a fine of Rs.3 lakhs carrying a default sentence of 3 years rigorous imprisonment. 2. The charge against the appellant is that on 2.2.95, while he was working at Government Kamaraj Hospital, Chidambaram, he conducted surgery on the deceased Rani for family planning negligently and conducted second surgery with the knowledge that such surgery is likely to cause death of the deceased. The deceased died on 13.2.95 at 5.00 p.m. due to peritonitis and thereby he has committed an offence under Section 304(ii) I.P.C. 3. P.W.1, who is the father of the deceased, has stated that his daughter, the deceased, was having three children and the last child was born in the year 1995. Thereafter, the deceased decided to undergo family planning as per the decision of P.W.1, P.W.4, the parents of the deceased and P.W.5, the husband of the deceased. Therefore, they admitted the deceased at Government Hospital, Chidambaram on 1.2.95 as an in-patient. On the same day, the deceased was examined by the accused and he decided to conduct the surgery on the very next day. On 2.2.95, the accused conducted surgery at 1p.m. After the surgery, the deceased was restless and she complained of burning sensation throughout her body and she was also suffering from stomach pain. The deceased also vomitted and she became very weak. When P.W.1 informed the accused about the condition of the deceased, the accused told him that some mistake has happened and that it will be set right and asked P.W.1 not to worry about it. Further, the accused informed P.W.1 that the deceased has to undergo a second surgery inorder to save her life. On hearing this, P.W.1 stated that he would take the deceased to some other hospital for treatment, but, the accused refused to discharge the deceased. Further, the accused informed P.W.1 that the deceased has to undergo a second surgery inorder to save her life. On hearing this, P.W.1 stated that he would take the deceased to some other hospital for treatment, but, the accused refused to discharge the deceased. Thereafter, the accused obtained signature from P.Ws 1 and 4, the parents of the deceased and conducted the second surgery on 10.2.95. Even after the second surgery, the deceased complained of burning sensation throughout her body and requested P.W.1, her father, to take care of the children. The deceased died on 13.2.95 at 5p.m. When P.W.1 informed the accused about the death of the deceased, the accused informed P.W.1 that her life is over. Thereafter, P.W.1 went to Chidambaram Police Station and gave a report, Ex-P1 to P.W.10, the Head Constable. P.W.10, on receipt of Ex-P1, at 10.40p.m. on 13.2.95, registered a case in Crime No. 66/95 under Sections 304-A I.P.C. He prepared the First Information Report, Ex-P4 and sent the same to the Inspector of Police. 4. P.W.8, the Inspector of Police, received the First Information Report in this case on 14.2.95 at 7.20a.m. Thereafter, at 8a.m., he went to Government Kamaraj Hospital, Chidambaram and prepared an Observation Mahazar, Ex-P3. He made arrangements to take photographs of the body of the deceased. He held inquest on the dead body of the deceased from 9a.m. to 12 noon and during inquest, he examined P.W.s 1, 4 and 5. Thereafter, he made arrangements for conducting postmortem. 5. P.W.2, the doctor, attached to Government Hospital, Cuddalore came to the Government Hospital, Chidambaram and conducted postmortem on 14.2.95 at 4.30p.m. and she found the following injuries on the deceased: "1. A vertical sutured wound with tention sutures about 20cm in length. Extending 1 inch above the umblicus to the supra pubic region. 2. A sutured wound horizontally placed about 6cm length. Over the suprapubic region extending more towards left. 3. Two drainage tubes kept through the drainage wound. Over both flanks. 4. Stomach congested mucosa hyperamic contains 50ml of brownish fluid. Liver congested, both kidneys congested intestines distended with the gas hybercamic, matted together, with disting yellowish fladces all over the intestines. 5. A single sutured wound with silk about 1/2 cm found one foot proximal to the sutured ileo-caecal wound junction over the ileum. It was lumen. 6. 4. Stomach congested mucosa hyperamic contains 50ml of brownish fluid. Liver congested, both kidneys congested intestines distended with the gas hybercamic, matted together, with disting yellowish fladces all over the intestines. 5. A single sutured wound with silk about 1/2 cm found one foot proximal to the sutured ileo-caecal wound junction over the ileum. It was lumen. 6. A sutured wound with cadgut about 1cm in length found in the sigmoid colon. 7. Uterus was enlarged to 10 to 18 weeks 8. Right tube tube chomy done stumps seen 8 life tube corneal end of the tube ligated and rest of the tube and ovary not seen. 9. A horizontally sutured wound about 4 cm found in the posterior aspect of the uterus about 1/2 inch below the left cornea. 10. Endometrium infected and unhealthy. Depth of the sutures are only upto the myometrium." P.W.2 also sent stomach and its contents, sutured portions of the intestines, sample of liver and kidneys for chemical analysis. Ex-P2 is the postmortem certificate. P.W.3, another doctor, is also said to have assisted P.W.2 in conducting postmortem on the dead body of the deceased. P.W.3, finally gave her opinion as to the cause of death stating that the deceased appear to have died of peritonitis. 6. P.W.8 continued his investigation upto 15.2.95 and further investigation was taken up by P.W.9 from 20.2.95. P.W.9 sent samples of liver, intestines, etc, of the deceased for chemical analysis through the Magistrate Court. Thereafter, P.W.9 was succeeded by P.W.11. P.W.11 examined the doctor, P.W.2, who conducted postmortem and also P.W.3, who assisted P.W.2 and recorded their statements. He also examined the photographer, who took photographs of the deceased. After completion of investigation, P.W.11 filed the charge-sheet on 25.2.97 against the accused for the offence under Section 304(ii) I.P.C. 7. During the course of trial, the prosecution, in order to prove its case, examined P.W.s 1 to 13, filed Exs-P1 to P20 and marked M.O.1 - photographs and negatives and M.O.s 2 and 3 – X-rays. 8. When the accused was questioned under Section 313 Cr.P.C. in respect of the incriminating materials made appearing against him, the accused came forward with a version of total denial. The accused also filed a written statement wherein he has stated that he is having 19 years service in the field of family planning and that he is conducting 1000 surgeries per year. The accused also filed a written statement wherein he has stated that he is having 19 years service in the field of family planning and that he is conducting 1000 surgeries per year. He has further stated that so far, he has conducted 15000 surgeries of family planning. According to him, he has conducted the surgery properly and not in a negligent manner and the deceased was normal after the surgery. He has stated that there was no problem in the fallopian tube after the surgery and that the condition of the deceased deteriorated not because of his surgery. He has further stated that the deceased was normal for 3 days after the surgery and that he also took x-rays of the deceased. He has stated that the second surgery was not conducted by him, but by another doctor, by name, Natarajan and therefore, he has pleaded that he has nothing to do with the offence. 9. Mr. R. Srinivas, learned counsel for the appellant has contended that the prosecution has miserably failed to prove its case beyond reasonable doubt by placing clear, cogent and consistent evidence. Learned counsel further submitted that even as per the entire evidence adduced by the prosecution, the offence under Section 304(ii) I.P.C. is not at all made out. Learned counsel also took me through the relevant portions of the evidence of P.W.1, the father of the deceased, P.W.4, the mother of the deceased, P.W.5, the husband of the deceased and also the evidence of the doctors, P.W.s 12 and 13 and pointed out that there is absolutely no negligence on the part of the accused while he conducted family planning surgery on the deceased. It is also pointed out by the learned counsel for the appellant that the doctor, P.W.12, has categorically stated that the second surgery was only conducted by him and the accused was merely present along with him at the time of second surgery. Learned counsel further submitted that as per the evidence of the doctor, P.W.13, there is absolutely no fault on the part of the accused and the deceased died only due to 'septicemia shock'. Learned counsel further submitted that as per the evidence of the doctor, P.W.13, there is absolutely no fault on the part of the accused and the deceased died only due to 'septicemia shock'. It is also contended by the learned counsel that P.W.13 has categorically stated that the perusal of the case sheet makes it crystal clear that the deceased was given proper treatment and according to him, due to the attack of bacteria or virus, septicemia condition may arise, resulting in death. It is the further submission of the learned counsel for the appellant that P.W.s 1, 4 and 5, the father, the mother and the husband of the deceased have come forward with a new version before the Court while giving evidence in Court that when they informed the accused that the deceased was not feeling well and was complaining about stomach pain and burning sensation throughout her body and also vomitted, the accused said that they need not worry and that the deceased has to undergo a second surgery to save her life and that they were not allowed to take the deceased for treatment outside the hospital. However, they did not state so during their examination by P.W.8, the Inspector of Police. Therefore, the learned counsel for the appellant submitted that the witnesses, P.W.s 1, 4 and 5 have deliberately come forward with a developed and false version and the counsel would therefore submit that the entire prosecution case should be rejected. 10. On the other hand, learned Government Advocate (Criminal Side) has contended that the prosecution has come forward with a clear, cogent and consistent evidence and there is absolutely no contradictions in their evidence in respect of material particulars. It is also contended by the learned Government Advocate that the evidence of P.W.s 1, 4 and 5 is natural and that they have no motive to implicate the accused falsely in this case. It is also contended by the learned Government Advocate that all these witnesses are illiterate people and therefore, they have not given elaborate statements during their examination by the police and they have simply stated that because of negligence on the part of the accused, while conducting the surgery, the deceased died. Therefore, the learned Government Advocate submitted that the prosecution has proved its case beyond reasonable doubt. 11. Therefore, the learned Government Advocate submitted that the prosecution has proved its case beyond reasonable doubt. 11. I have given my careful and anxious consideration to the rival contentions put forward by both sides. A reading of the charge framed in this case clearly shows that as per the charge, offence under Section 304-A I.P.C. is only made out, but the charge shows an offence under Section 304(ii) I.P.C. It is clearly stated that the accused committed the murder of he deceased by conducting surgery on her in a rash and negligent manner. Be that as it may. Now, this Court has to scrutinise the evidence adduced by the prosecution through the main witnesses namely, P.W.s 1, 4 and 5 and come to a conclusion whether the prosecution has proved its case beyond reasonable doubt. The entire perusal of the materials available on record shows that apart from the evidence of P.W.s 1, 4 and 5, there is absolutely no corroboration, whatsoever, in respect of their version through any other witness in this case. It is also relevant to note that even the medical evidence does not support the prosecution case and on the other hand, the medical evidence has belied the prosecution version. At this juncture, it is relevant to be noted that the version of P.W.s 1, 4 and 5 that the accused conducted the second surgery in spite of their request to discharge the deceased has been proved to be false through the evidence of the doctor, P.W.12, who has categorically stated that the second surgery was conducted only by him and the accused was merely present at that time. Added to the evidence of the doctor, P.W.12, is the evidence of another doctor, P.W.13, who has also categorically stated that the second surgery was conducted only by P.W.12 and that accused was present along with him. Therefore, the version of P.W.s 1, 4 and 5 is proved to be false in respect of that aspect. 12. Apart from this material, which is in favour of the accused, there are other materials also available on record through the prosecution witnesses themselves. Yet another important aspect in this case is that even as per the postmortem certificate, Ex-P2, the cause of death is shown as due to peritonitis. 12. Apart from this material, which is in favour of the accused, there are other materials also available on record through the prosecution witnesses themselves. Yet another important aspect in this case is that even as per the postmortem certificate, Ex-P2, the cause of death is shown as due to peritonitis. The prosecution has also not elicited any answer from the doctor P.W.2, who conducted postmortem and also from the doctor P.W.3, who assisted P.W.2 during postmortem and there is absolutely no whisper either in the evidence of P.W.2 or in the evidence of P.W.3 that death is due to the rash and negligent manner of conducting surgery by the accused. The doctor, P.W.13, has stated very clearly that the deceased was normal immediately after the surgery on 2.2.95 and till 4.2.95 and that they found some swelling on the stomach only on 5.2.95 and that was reported to the doctor P.W.12 and he had examined her and x-rays were taken by sending the deceased to Government Hospital, Cuddalore. M.O.s 2 and 3 are the x-rays. The doctor, P.W.13, has further stated that even from 6.2.95 to 8.2.95, the condition of the deceased was normal and continuous treatment was given. He has also stated that a perusal of the case-sheets would show that the deceased was given proper treatment. It is his further evidence that bacterial infection might have caused "septicemia condition" resulting in the death of the deceased. It is significant to note in spite of the definite version given by the doctors, P.W.s 2, 3, 12 and 13 in their chief-examination as well as in their cross-examination, the prosecution has not chosen to treat them as hostile and the prosecution itself has admitted their evidence as correct and proper. 13. The Hon'ble Supreme Court of India has held in SURESH GUPTA V. GOVT. OF N.C.T. OF DELHI reported in 2004 CRI.L.J.3870 that, "26. To convict, therefore, a doctor, the prosecution has to come out with a case of high degree of negligence on the part of the doctor. Mere lack of proper care, precaution and attention or inadvertence might create civil liability but not a criminal one. OF N.C.T. OF DELHI reported in 2004 CRI.L.J.3870 that, "26. To convict, therefore, a doctor, the prosecution has to come out with a case of high degree of negligence on the part of the doctor. Mere lack of proper care, precaution and attention or inadvertence might create civil liability but not a criminal one. The Courts have, therefore, always insisted in the case of alleged criminal offence against doctor causing death of his patient during treatment, that the act complained against the doctor must show negligence or rashness of such a higher degree as to indicate a mental state which can be described as totally apathetic towards the patient. Such gross negligence alone is punishable." In respect of this case, version given by the Doctors P.Ws.2, 3, 12 and 13in their chief-examination as well as cross-examination to the effect that the deceased was normal after the surgery and the deceased has not died due to the surgery and further the second surgery was admittedly conducted by P.W.12 and not by the accused and therefore on the basis of the evidence of these witnesses, the entire case of the prosecution falls to the ground. 14. Therefore, for the reasons stated above, this Court is left with no other alternative except to set aside the conviction and sentence imposed on the appellant and acquit him of the charges. The appeal is allowed. Bail bonds, if any, executed shall stand cancelled. It is now reported by the learned counsel for the appellant that at the time of admission of the appeal, in respect of fine amount of Rs.3 lakhs imposed by the Trial Court, this Court permitted the appellant to furnish bank guarantee for the said amount. The appellant is permitted to revoke the bank guarantee by producing the judgment of this Court.