Professional Documents
Culture Documents
Memorial
Memorial
V/s.
1. Mahesh Patel
2. State of Gujarat………………………………
Gujarat……………………………….....
……………………………….....Respo
.....Respon
Respondents
dents
___________________
Memorial for Appellants
Appellants
___________________
Submitted by
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IN THE HON’BLE HIGH COURT OF GUJARAT AT AHMEDABAD
DISTRICT: AHMEDABAD
VERSUS
1. Mahesh Patel
2. State of Gujarat…Respondents
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TABLE OF CONTENTS
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LIST OF ABBREVIATIONS
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INDEX OF AUTHORITIES
Books
Ratanlal and Dhirajlal, The Indian Penal Code, 34th Ed. (2014)
Ratanlal and Dhirajlal, The Law of Evidence, 25th Ed., LexisNexis (2013)
Modi’s Medical Jurisprudence and Toxicology, (23rd Ed. 2010)
Case Laws
Jacob Mathew v. State of Punjab and Anr. 2005 AIR SCW 3685 : AIR
2005 SC 3180.
Test
Bolam Test.
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STATEMENT OF JURISDICTION
The appellants humbly submit to this Hon’ble Court that the present
appeal is filed u/s. 374 of the CrPC (Criminal Procedure Code) 1973,
against the judgment and order of the Sessions Court, Ahmedabad and
hence this Hon’ble Court is having jurisdiction and power to entertain
and decide the present appeal.
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STATEMENT OF LIMITATION
The appellants humbly submit to this Hon’ble Court that the present
appeal u/s. 374 of the Criminal Procedure Code, 1973 is filed within the
prescribed period of limitation of 90 days as the judgment and order
pronounce by the Hon’ble Session Court, Ahmedabad on 10-11-2013.
The present appeal is filed within the prescribed period of limitation.
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STATEMENT OF FACTS
2. Keval returned from the practice of football from the school in vacation In May
2009, he began throwing fit and losing consciousness at sudden intervals. His
father immediately consulted one of the reputed Neuro-Physician Dr. Kuldeep
Singh at the Longlife Charitable Trust Hospital. Ahmedabad Doctors’ Welfare
Association started the aforesaid hospital having motto to provide the best
treatment to the patients at the reasonable charges. It is one of the reputed
hospital in the entire city for providing the best treatment.
3. At the time of examination, Doctor diagnosed that child was suffering from
epilepsy. After proper examination doctor prescribed the best treatment
involving the administration of two well-known drugs for epilepsy – 1. Zentor
and 2. Gardiol. The said treatment is for a period of 8 months and along with
this the child is advised to discontinue his school for at least period of 2-3
months and take a rest during the treatment.
4. Because Keval was keen to attend the classes at his school and due to
continuous insistence his father allowed him to go to the school for attending
classes. Now due to this the medicine did not serve its object and hence doctor
increased the dosage of the frequency of the said medicines. However, the
condition of worsened and the frequency of convulsion grew rapid. As a result
the child was constrained to proceed leave from the school from 16th August
2009.
5. The child had his evening dosage of prescribed drug Gardiol on 19th August,
2009 at about 10.30 pm, he developed severe convulsions. He suddenly lost his
consciousness and collapsed on the bed. Immediately father called Dr. Kuldeep
Singh at his residence. Dr. Singh expressed his inability to come, but advised
him to admit his son to the reputed Longlife Charitable Hospital. By following
the advise of Dr. Singh, His father immediately admitted the child at the
hospital.
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6. At the night of 19th August 2009, a young doctor named Dr. Vyomesh Mishra
pursuing his internship at the hospital on duty. He examined the patient and
looking to the serious condition he directed child to be taken to ICU. As
looking to the critical condition of the child, the hospital authorities agreed to
provide treatment upon signing a consent from stating that the Hospital shall
not be held liable or responsible in whole or part for any future consequences if
at all developed to patient Keval during his treatment at the hospital. Desperate
to save his son, Mr. Mahesh Patel was constrained to sign the aforesaid consent
form of the hospital.
7. Before the father could appraise Dr. Vyomesh Mishra about the previous case
history of child and the treatment provided to him, Dr. Vyomesh Mishra
administered a sedative called Epitaphenol, it is given in case of severe
epileptic attack. Just after the application of said medicine, father saw his son
finding difficult to breath and was gasping for breath. Soon he lost his
consciousness. Mahesh Patel after seen this called the Dr. Mishra to examine
his son. But Dr, Mishra explained him that it was not unconsciousness, but
sleep due to sedative medicine. As father dissatisfied with the explanation he
called Dr. Kuldeep Singh at his residence again at 3.30 am on 20th August
2009, and requested to come to the hospital to examine his son. But Dr.
Kuldeep Singh refused and showed his inability.
8. The child was expired in the hospital on 20th August 2009, at 6.00 am. The
autopsy revealed myocardial infarction as the cause of death. This was a
resultant effect of adverse reaction of Epitaphenol drug with Gardial, which
was prescribed by Dr. Kuldeep Singh.
9. FIR was lodged on 23rd August 2009, by his father in crime Register No.
II/XXX/2009 at Navrangpura Police Station, Ahmedabaad against both the
Doctors’ for having committed offences punishable u/s. 302, 304 and 304-A of
the Indian Penal Code. The charge-sheet was filed after investigation by the
Officer in charge at Navrangpura Police Station and the magistrate committed
the case to the Sessions Court for trial after framing the charges u/s. 302, 304 &
304-A of the Indian Penal Code.
10. The learned Sessions judge by his judgment and order found both the accused
personally guilt for having committed offences punishable under section 304
part II of the Indian Penal and punished them with rigorous imprisonment for
10 years and fine of Rs. 2 lacs each.
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STATEMENT OF ISSUES
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SUMMARY OF ARGUMENTS
2. The Appellant No. 1 gave his best treatment with the bonafied
intention to save the life of the child and there is not any negligence
on a part of it. However, the Hon’ble Supreme Court of India has
said in the case the case of Jacob Mathew v. State of Punjab and
Anr. 2005 AIR SCW 3685: AIR 2005 SC 3180 that negligence is
the breach of a duty caused by omission to do something, which a
reasonable man guided by those consideration which ordinarily
regulate the conduct of human affairs would do or doing something
which a prudent and reasonable man would not do.
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PRAYER
In the light of arguments presented in front of the Hon’ble Court, the respected bench
may be pleased
a) To quash and set aside the judgment and order pronounced by the Hon’ble
Sessions Court that found Appellant No. 1 and Appellant No. 2 guilty for
having committed offence punishable under section 304 II of Indian Penal
Code IPC and to acquit the appellants. If the Hon’ble court is not very pleased
with the arguments presented then, the Hon’ble court may be kind enough to
b) To quash and set aside the appeal u/s. 372 of the CrPC seeking compensation
as it is not the case of 304 or 304 II and if not very pleased with the arguments
presented then to quantum of fine as per the discretion of the Hon’ble Court.
c) Any other relief which may be deemed fit in the circumstances of the case be
kindly granted.
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