JUDGMENT K.N. Keshavanarayana J.—In this appeal filed under Section 378(1) & (3) of Cr.P.C., the State has questioned the legality and correctness of the judgment and order dated 14.12.2004 passed by the Presiding Officer, Fast Track Court III, Shimoga, in Crl.A.No. 3/2001 allowing the said appeal and setting aside the judgment of conviction and order of sentence dated 13.12.2000 passed by J.M.F.C. II Court, Shimoga, in C.C.No. 1838/99, convicting the respondent herein for the offence punishable under Section 304-A of IPC. The respondent was charge sheeted for the offences punishable under section 304-A of IPC by the Jayanagar Police, Shimoga. The allegation made against the respondent-accused was that he being a Surgeon in Datta Nursing Home conducted surgery on the deceased Ramesh Shenoy, husband of P.W.1 Smt. Nirupama Shenoy on 06.02.1998 for removal of stone in gallbladder, a process which is medically termed as Cholecyctectomy and after the operation, by his negligent act, he left a mop (cotton swab) measuring 20 x 15 c.m. inside the abdominal cavity and closed the operative wound; that on account of presence of foreign body inside the abdominal cavity, the patient developed complication; that on 17.02.1993 he was shifted to K.M.C. Hospital., Manipal wherein after scanning, he was operated on 18.02.1998 by P.W.3 and during such operation, the mop measuring 20 x 15 c.m. (M.O.1) was removed and the presence of this foreign body inside the abdominal cavity resulted in development of infection which led ultimately to the death of the said Ramesh Shenoy on 26.02.1998. Thus, the respondent-accused is guilty of the medical negligence punishable under Section 304-A of IPC. 2. The respondent-accused upon his appearance before the learned Magistrate pleaded not guilty for the charge levelled against him and claimed to be tried. During the trial, the wife and son of the deceased were examined as P.Ws. 1 and 2. The Doctor who conducted surgery on the deceased in K.M.C. Hospital, Manipal, and removed foreign body left inside the abdominal cavity, was examined as P.W.3, while the two Investigating Officers were examined as P.Ws. 4 and 5. The medical records and other documents were produced and marked as Exhs.P1 to P32. During his examination under Section 313 of Cr.P.C., the respondent-accused denied all the incriminating circumstances appearing against him. In support of his defence, he examined D.W. 1 -Govinda. 4 and 5. The medical records and other documents were produced and marked as Exhs.P1 to P32. During his examination under Section 313 of Cr.P.C., the respondent-accused denied all the incriminating circumstances appearing against him. In support of his defence, he examined D.W. 1 -Govinda. According to D.W.1, he was present at the time of surgery and it is on account of his negligence, the mop was left inside the abdominal cavity. 3. The learned Magistrate after hearing both the sides and on assessment of oral and documentary evidence held that the prosecution has proved the negligence on the part of the respondent-accused, and on account of the negligence on the part of the respondent-accused the deceased Ramesh Shenoy breathed his last. In that view of the matter, the learned trial Judge held the accused guilty of the charges levelled against him. Therefore, the learned Magistrate convicted the respondent-accused and sentenced him to undergo imprisonment for six months and pay the fine of Rs. 2,000/-. Aggrieved by the said judgment of conviction and order of sentence, the respondent-accused filed appeal before the learned Sessions Judge. 4. The learned Appellate Judge on reassessment of oral and documentary evidence though concurred with the findings of the learned Magistrate with regard to the act on the part of the respondent in leaving the mop (M.O.1) inside the abdominal cavity of the deceased after conducting surgery before closing the operative wound, held that such an act cannot be termed as negligence of a higher degree as held by the Hon'ble Supreme Court in the case of Dr. Suresh Gupta -vs.- Government of N.C.T. of Delhi and Another - 2004 AIR SCW 4442. The learned Appellate Judge further noticed that even if the act on the part of the respondent-accused could be termed as negligent, there is no acceptable evidence to establish that this negligent act on the part of the respondent-accused was the ultimate cause for the death of the deceased. The learned Appellate Judge noticing that even as per the evidence of P.W.3 and the death report, the cause of death of deceased was Hepatic Encephalopothy i.e., damage of liver and histopathology report as reported in Ex.P.25, the liver damage was due to drug induce, held that the ultimate cause of the death was not relatable to the negligent act on the part of the respondent-accused. Therefore, the learned Appellate Judge opined that the accused cannot be held guilty of the offence punishable under Section 304A of IPC. The learned Appellate Judge held that the judgment of the trial Court to that extent is perverse and illegal. Therefore, the judgment of conviction was set aside and the accused was acquitted of the charge levelled against him. Against this judgment of acquittal passed by the learned Sessions Judge, the State is in appeal before this Court. 5. I have heard Sri Karunakar, learned Government Pleader appearing for the State and Sri S.G. Bhagawan, learned counsel for the respondent-accused and perused the records secured from the Courts below as well as the judgments under appeal. 6. The undisputed facts are that the respondent is a reputed Surgeon in Datta Nursing Home situate in Shimoga, who holds an F.R.C.S. degree and has been practicing as Surgeon for over 25 years prior to the date of the operation conducted on the deceased in this case. The deceased Ramesh Shenoy was a Chemist running a Drug store in Shimoga and he was a regular visitor to the said Nursing Home. The respondent-accused had conducted surgery on the son of the deceased and P.W. 1. The deceased was admitted to Datta Nursing Home for undergoing a surgery for removal of stone in the gallbladder. The respondent conducted surgery on the deceased on 06.02.1998. The post operative period was eventful in the sense he developed fever and vomiting. The fever did not come to control and on a scanning done on 16.02.1998, the respondent suspected presence of a foreign body in the abdominal cavity. Immediately, the respondent suggested for a surgery for removal of the foreign body. However, the wife and son of the deceased did not give consent and they expressed their desire to shift the patient to a major hospital. Accordingly, he was shifted to KMC Hospital, Manipal, on 17.02.1998 along with a reference letter from the respondent-accused. In K.M.C. Hospital, Manipal, the deceased was examined and treated by P.W.3-Dr. Rajagopal Shenoy. The scanning done in that hospital also showed the presence of a foreign body. On 18.02.1998, P.W.3 performed operation on the deceased and on such operation, a mop of a dimension of 20 x 15 c.m. was discovered in the abdominal cavity. In K.M.C. Hospital, Manipal, the deceased was examined and treated by P.W.3-Dr. Rajagopal Shenoy. The scanning done in that hospital also showed the presence of a foreign body. On 18.02.1998, P.W.3 performed operation on the deceased and on such operation, a mop of a dimension of 20 x 15 c.m. was discovered in the abdominal cavity. Though the patient showed signs of improvement for three days after the second operation, thereafter he was found suffering from jaundice and there was bile leakage. On further examination, it was found that his liver has been damaged and ultimately, he died on 26.02.1998 in K.M.C. Hospital, Manipal. 7. As could be seen from the judgment under appeal, both the Courts have recorded concurrent finding that the respondent-accused was responsible for the surgery conducted on the deceased and he after conducting operation has failed to remove the mop measuring about 20 x 15 c.m. and left the same in the abdominal cavity of the deceased before closing the operative wound. Both the Courts have concurrently held there was act of negligence on the part of the respondent-accused in leaving the mop inside the abdominal cavity. Both the Courts below have recorded a finding that M.O.1 mop had been removed from the abdominal cavity of the deceased on a second operation conducted by P.W.3 in K.M.C. Hospital, Manipal. On the basis of this admitted and proved facts, the trial Court recorded a finding that this act on the part of the respondent-accused in leaving the mop of that size in the abdominal cavity is a negligent act within the meaning of Section 304-A of IPC and therefore, the accused is guilty of the said offence and accordingly, he was convicted. However, the learned Appellate Judge, relying on the judgment of the Apex Court in the case of Dr. However, the learned Appellate Judge, relying on the judgment of the Apex Court in the case of Dr. Suresh Gupta referred to supra, wherein it has been held that in order to prove medical negligence on the part of a medical professional, mere negligence or lapse on the part of the doctor is not sufficient to attract the offence punishable under Section 304-A of IPC, but in order to find him guilty of the such offence, negligence must be of a higher degree on the part of the doctor and mere inadvertence or some degree of want of adequate care and caution might create civil liability, but would not suffice to hold criminally liable, held that the act on the part of the respondent-accused in leaving the mop inside the abdominal cavity can be termed only as carelessness or inadvertence but not a gross negligence of a higher degree to attract the offence punishable under Section 304A of IPC. In addition to this, the learned Appellate Judge further noticed that the cause of death of the deceased as spoken to by P.W.3 and as per the contents of death report and other medical records was hepatic encephalopothy i.e., damage of liver. The learned Appellate Judge further held that the evidence placed by the prosecution does not convincingly establish that the negligent act committed by the respondent-accused led to damage of the liver and therefore, in the absence of any evidence to establish that the act of the respondent-accused led to damage of the liver, it cannot be said that the accused is guilty of the offence punishable under Section 304A of IPC. In that view of the matter, the Appellate Judge has reversed the finding recorded by the learned trial Judge. 8. The judgment of Dr. Suresh Gupta referred to supra and few other decisions on the point were considered by a Larger Bench of the Apex Court in Jacob Mathew Vs. State of Punjab and Another, AIR 2005 SC 3180 . After referring to the various decisions including Dr. Suresh Gupta, the Apex Court summed up the conclusion at paragraph 49, which reads as hereunder: 49. State of Punjab and Another, AIR 2005 SC 3180 . After referring to the various decisions including Dr. Suresh Gupta, the Apex Court summed up the conclusion at paragraph 49, which reads as hereunder: 49. We sum up our conclusions as under:- (1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'. (2) Negligence in the context of medical profession necessarily calls for a treatment with 'a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used. (3) A professional may be held liable for negligence on one of the two findings, either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case- the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. (4) The test for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India. (5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution. (6) The word 'gross' has not been used in Section 304A of IPC, yet it. is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be 'gross'. The expression 'rash or negligent act' as occurring in Section 304A of the IPC has to be read as qualified by the word 'grossly'. is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be 'gross'. The expression 'rash or negligent act' as occurring in Section 304A of the IPC has to be read as qualified by the word 'grossly'. (7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent. (8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence. 9. Thus, from the aforesaid decision, it is clear that in order to determine the medical negligence, the Court is also required to find out as to whether there was an element of mens rea. As held by the Apex Court, for an act to amount to criminal negligence, the degree of negligence should be much higher i.e., gross or of a very high degree. Though the word 'gross' has not been used in Section 304A of IPC, the Apex Court has held that insofar as the medical negligence is concerned, it must be of a higher degree. In the case on hand, the respondent-accused is a highly reputed Surgeon in Shimoga having more than 25 years of experience and he also possessed F.R.C.S. degree. The deceased was a regular visitor of Datta Nursing Home and respondent-accused is well known to the deceased and his family. These circumstances rules out presence of element of mens rea. Therefore, the act of the respondent-accused in leaving a mop inside the abdominal cavity before closing the operative wound, as held by the Appellate Judge, cannot be termed as negligence of a higher degree which can be termed as gross negligence. These circumstances rules out presence of element of mens rea. Therefore, the act of the respondent-accused in leaving a mop inside the abdominal cavity before closing the operative wound, as held by the Appellate Judge, cannot be termed as negligence of a higher degree which can be termed as gross negligence. The reasoning adopted by the learned Appellate Judge in this behalf is sound and reasonable in the light of the principles laid down by the Apex Court in the aforesaid decisions and it cannot be termed either as perverse or as illegal so as to call for interference by this Court. In addition to this, from the evidence, it is clear that the ultimate cause of death of deceased was due to damage to the liver. From the evidence of P.W.3, the doctor who operated on the deceased in K.M.C. Hospital, Manipal, when the deceased was brought to K.M.C. Hospital his liver was functioning properly. It is also the say of P.W.3 that after the second surgery on 18.02.1998 for about three days, the patient showed signs of improvement and the fever had come down and was under control. However, later it was found that he was suffering from jaundice and liver damage as a result of which he slipped into coma. It is further elicited from him that he is not in a position to state as to for what reason the deceased suffered liver damage. Further it is elicited from him that as per histopathology report-Ex.P.25, there was drug induced liver was damaged. Ex.P.25 is a biopsy report of the liver and according to this report, the features found in biopsy were consistent with collangities and drug induce liver disease. As per the Better word medical dictionary second edition, the meaning of collangities is inflammation of the biliary duct system usually due to calculi. In the cross-examination, P.W.3 has stated that he has not conducted P.M. examination on the dead body of Ramesh Shenoy and he is not in a position to state the exact cause of death of the deceased. From the evidence of P.W.3, it is not clear as to whether the presence of mop inside the abdominal cavity from 06.02.1998 to 18.02.1993 was the cause for damage of the liver. From the evidence of P.W.3, it is not clear as to whether the presence of mop inside the abdominal cavity from 06.02.1998 to 18.02.1993 was the cause for damage of the liver. Therefore, assuming for the purpose of argument that the act of the respondent-accused in leaving the mop of that magnitude inside the abdominal cavity was a negligent act which a medical professional in his ordinary senses and prudence would not have done as stated in paragraph 49(7) of the judgment in Jacob Mathew's case (supra), in the absence of any satisfactory evidence to establish any nexus between such negligent act on the part of the respondent with the ultimate cause of death of the deceased, the respondent-accused cannot be held guilty of the offence punishable under Section 304A of IPC. In this view of the matter, I am of the considered view the learned Appellate Judge has not committed any error in reversing the judgment of the trial Court and acquitting the deceased. The judgment of the Lower Appellate Court, looking from any angle, does not suffer from any perversity or illegality calling for interference by this Court. 10. At this stage, it is necessary to note that the learned counsel for the respondent-accused brought to the notice of this Court that in the claim petition filed before the Karnataka State Consumer Redressal Forum, by the wife and son of the deceased against the respondent-accused for damages, the parties entered into a compromise, whereunder the respondent-accused agreed to pay compensation of Rs. 8,00,000/- and on the date of the compromise itself paid Rs. 4,00,000/-and the balance amount of Rs. 4,00,000/- has been paid by means of Cheques which in all probabilities have been honoured. Thus from this it is clear that the respondent-accused has properly compensated the legal representatives of the deceased for the loss suffered by them on account of the negligent act on his part. However, there is absolutely no circumstance to hold him guilty for the offence punishable under Section 304A of IPC by branding his act as a 'gross negligent act' leading to the death of deceased. In this view of the matter, I find no merit in this appeal. The appeal is accordingly dismissed.