TEAM CODE: T18A

NOVICE MOOT COURT COMEPTITION, 2021

BEFORE THE HON’BLE HIGH COURT OF JUDICATURE, KINGS LANDING

IN THE MATTER BETWEEN

DR. CERSEI LANNISTER (Appellant)

V.

STATE OF KINGS LANDING (Respondent)

Criminal Appeal No.___ of 2021

-MEMORANDUM FOR APPELLANT-

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MEMORANDUM for APPELLANT TABLE OF CONTENTS

TABLE OF CONTENTS

TABLE OF ABBREVIATIONS ....................................................................................................... II

INDEX OF AUTHORITIES............................................................................................................IV

STATEMENT OF JURISDICTION ..................................................................................................VI

STATEMENT OF FACTS ............................................................................................................ VII

ISSUES RAISED .......................................................................................................................... IX

SUMMARY OF ARGUMENTS ....................................................................................................... X

ARGUMENTS ADVANCED ............................................................................................................ 1

ISSUE 1: Whether or not the stance of the appeal is maintainable in the court of law? ....... 1

[1.1] The present appeal is maintainable ............................................................................ 1

ISSUE 2: Whether or not the act of Dr Cersei Lannister amounts to negligence on her part?
................................................................................................................................................ 1

[2.1] The doctor administered the drug to the patient with due care and caution .............. 2

[2.2] There was no mens rea on the doctor’s part at all...................................................... 3

[2.3] The Act of the doctor was not intended to cause death, and was done by consent in
good faith for the patient’s benefit ..................................................................................... 4

ISSUE 3: Whether or not the Trial Court has erred in finding Dr Cersei Lannister guilty of
Medical Negligence under Section 304A of IPC? ................................................................. 5

[3.1] There was no direct nexus between the death of the patient and the alleged
negligent act ........................................................................................................................ 6

[3.1.A] Dr. Cersei act was not Rash and Negligent ........................................................ 6

[3.2] Section 90 of IPC cannot be lodged against the appellant ......................................... 7

[3.3] Absence of gross negligence ...................................................................................... 8

PRAYER .................................................................................................................................. XII

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MEMORANDUM for APPELLANT TABLE OF ABBREVIATIONS

TABLE OF ABBREVIATIONS

§ Section

¶/¶¶ Paragraph/Paragraphs

& And

AIR All India Reporter

Annx. Annexure

am Anti Meridiem

Anr. Another

Art. Article

Crim LJ Criminal Law Journal

Cr.P.C. Code of Criminal Procedure, 1973

Ed. Edition

HC High Court

i.e. id est (that is)

IPC Indian Penal Code

No. Number

Ors. Others

pm Post Meridiem

p/pp. Page/Pages

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MEMORANDUM for APPELLANT TABLE OF ABBREVIATIONS

SC Supreme Court

SCC Supreme Court Cases

v. Versus

Vol. Volume

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MEMORANDUM for APPELLANT INDEX OF AUTHORITIES

INDEX OF AUTHORITIES

CASES

1. A. Srimannarayana vs. Dasari Santakumari, (2013) 9 SCC 496 ......................................... 7

2. Abdul Ise Suleman v State of Gujarat, AIR 1994 SC 1911 ................................................. 6
3. Achutrao Haribhau Khodwa v. State of Maharashtra, 1996 SCC (2) 634 ........................... 1
4. Bhappa Singh v. Ram Pal Singh and Ors, AIR 1982 SC 779 .............................................. 5
5. Director of Public Prosecutions v. Morgan, [1976] AC 182 ............................................... 3
6. Dr. Ashok and Anr. Vs. State of Maharashtra, 2020 SCC Bom 296 ................................... 6
7. Dr. Satyandra Katewa vs. State of Rajasthan, 2020 SCC Raj 1530 .................................... 6
8. Experor V. Omkar Rampratap, 4 Bom LR 679 ................................................................... 7
9. Hanif Usmanbhai Kalva and Ors. vs. State of Gujarat, 2015 (3) GLH 766. ....................... 5
10. Hemchandra Lal Karn vs. The State of Bihar, MANU/BH/1870/201 ................................. 5
11. Jacob Mathew vs. State of Punjab and Ors, (2005) 6 SCC 1....................................... 2, 3, 8
12. Joan Mathaikal vs. State of Bihar and Ors, MANU/BH/1251/2007 ............................... 3, 9
13. John Oni Akerele v. The King, AIR (1943) 72.................................................................... 8
14. Kaushik Ambalal Oza vs. State of Gujarat, MANU/GJ/0018/2015 .................................... 7
15. Krishna Bahadur Chetri vs. State of Assam, 1979 CriLJ 1258 ........................................... 9
16. Kurban Hussain v. State of Maharashtra, AIR 1965 SC 1616............................................. 6
17. Mahadev Prasad Kaushik v. State of U.P, AIR 2009 SC 125 ............................................. 6
18. Maharaja Agarsen Hospital and Ors. Vs. Master Rishabh Sharma and Ors., (2020) 6 SCC
501........................................................................................................................................ 3
19. Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee, (2009) SCC 221 .............................. 2
20. Martin F. D’Souza v Mohd. Ishfaq, AIR 2009 SC 2049 ..................................................... 8
21. Mulk Raj Singh vs. Union of India, AIR 1973 Delhi 169 ................................................... 5
22. Nizam’s Institute of Medical Sciences vs Prashant S. Dhanaka, (2009) 6 SCC 1 .............. 8
23. P. K. Sinha vs. The State of Jharkhand, (2009) 2 JLJR 195 ................................................ 2
24. Prabhakaran vs. State of Kerala, MANU/SC/2502/2007..................................................... 9
25. Qamar jahan and anr. Vs. Dr. Nisar Ahmed Tyagi and Ors., 2019 SCC NCDRC 1626 ..... 2
26. Queen v. Tolson, (1889) 23 QBD 168 ................................................................................. 3
27. Ramchand Chetandas Bathija vs Pijush Mukherjee, 2007 Cal HC 863 .............................. 8
28. S. Alexander Xavier v. State of H.P and Ors., 2019 SCC HP 2226 .................................... 6

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MEMORANDUM for APPELLANT INDEX OF AUTHORITIES

29. S.N. Husain v State of A.P, (1972) 3 SCC 18 ..................................................................... 8

30. State of Punjab v. Shiv Ram, (2005) 7 SCC 1 ..................................................................... 6
31. State vs. Sidhart Sawhney, 2020 SCC Del 198 ................................................................... 6
32. Suleman Rehiman Mulani and Ors. vs. State of Maharashtra, AIR 1968 SC 829 .............. 6
33. Sushil Ansal v. State, (2014) 6 SCC 173 ............................................................................. 8
34. Syed Akbar v. State of Karnataka, (1980) 1 SCC 30........................................................... 8
35. V. Kishan Rao v. Nikhil Super Speciality Hospital, (2010) 5 SCC 513.............................. 7
36. Ved Khuller vs. State, MANU/JK/0049/1986 ..................................................................... 3
37. Yunusbhai Anwarbhai Karodia vs. State of Gujarat, MANU/GJ/0086/2018 ...................... 4

STATUTES

1. Indian Constitution, 1950.

2. Indian Penal Code, 1860.
3. The Criminal Procedure Code, 1973.
4. Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002.

BOOKS

1. Dr. R.K Bangia, Law of Torts (24th Edition, 2018)

2. Ratanlal & Dhirajlal, The Law of Torts (Lexis Nexis, 2019)
3. Winfield & Jolowicz, Tort, (19th Edition, 2014)
4. K.D. Gaur, Indian Penal Code, (6th Edition, 2016)
5. Nelson R. A. Indian Penal Code, 10th Ed. (2008).
6. Princep's Commentary on the Code of Criminal Procedure, 1973 (18th ed. 2005).

WEBSITES

• www.lexisnexisacademic.com

• www.manupatrafast.com

• www.scconline.com

• www.indiankanoon.org

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MEMORANDUM for APPELLANT STATEMENT OF JURISDICTION

STATEMENT OF JURISDICTION

The Appellant have approached the Hon’ble High Court under Section 482 of the Code of
Criminal Procedure, 1973.

Section 482

Saving of inherent power of High Court -- Nothing in this code shall be deemed to limit or
affect the inherent powers of the High Court to make such orders as may be necessary to give
effect to any order under this code, or to prevent abuse of the process of any court or
otherwise to secure the ends of justice.

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MEMORANDUM for APPELLANT STATEMENT OF FACTS

STATEMENT OF FACTS

BACKGROUND

Dr Cersei Lannister was a Geneticist in Iron Lands Hospital, Kings Landing and Mrs Danaerys
Targaryen was a patient in that hospital who was suffering from a rare, life-threatening
syndrome called Khaleesi syndrome. Her family left her in Kings Landings for her further
treatment and had appointed Mrs Sansa Stark, an 18-year-old caretaker for her. Living in the
hospital for the past 12 years had almost broken Mrs Targaryen from inside. She had started
avoiding medications even after strict warnings by doctors and several times even overdosed
tonics consisting of alcoholic contents. Dr Cersei came to know about this condition of Mrs
Targaryen and became quite sympathetic when she realised that Mrs Targaryen had not been
out of the hospital even once in these 12 years and became determined to discover any possible
way to help her.

EVENTS

Subsequently, through her research, she discovered that the precise cause of the ‘KHALEESI’
disease is reportedly unknown. She found out about a Project named The Seven Kingdoms”,
and in the data presented under this project found out that Greyjoy Labs, the same company,
which manufactured Mrs Targaryen’s medicines of the KHALEESI disease, in research have
claimed that the drug they were marketing for Huntington’s disease has also cured a
considerable percentage of the KHALEESI disease patients as well. However, the chance of
the treatment being fatal is expected to be 30 per cent at her age. She decided to bring this up
to Mrs Targaryen as an option and tell her about the odds, to which Mrs Targaryen replied “I’m
really thankful for the care and time my doctors have given me, but it’s just not enough just to
be alive. I want to live” and consented to it. Dr Cersei wrote a detailed application mentioning
the medical history and current scenario of Mrs Targaryen’s health condition on 25th March
2020 to Greyjoy Labs to ask for the drug but her application got rejected by the Managing
Director of Greyjoy Labs, Mr Jon Snow, stating that the drug hasn’t been completely approved
by Food and Drug Administration, it is yet being experimented. Dr Cersei found out that the
Greyjoy Labs never really wished to introduce the cure of the KHALEESI disease in the
medical world, this fumed Dr Cersei and stole the sample drug sent by the lab to their hospital

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MEMORANDUM for APPELLANT STATEMENT OF FACTS

for the patients with Huntington’s disease. After getting the drug she asked Mrs Targaryen
whether to give her the dose and she gave her verbal consent to Dr Cersei in front of Sansa.

CLASH

Within a week Mrs Targaryen showed a miraculous recovery, and on 1st May 2020, she was
declared fully cured of the disease and Dr Cersei discharged her the very next day without even
keeping her under observation. On 7th May 2020, the news of Mrs Targaryen’s death came as
a shock. The postmortem reports of Mrs Targaryen confirmed that she had died of a
Cardiopulmonary Arrest, it was registered as a case of “sudden unexplained death (SUD)”.

POST CLASH

The husband of Mrs Targaryen sued the Hospital under Section 304A for causing death by
medical negligence. The Trial Court on 26th December 2020 convicted Dr Cersei under section
304A IPC read with Section 90 and Section 337 of IPC and approved the suspension of her
license. Now Dr Cersei Lannister has filed an appeal before the Hon’ble High Court of Kings
Landing against her conviction in Trial Court.

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MEMORANDUM for APPELLANT ISSUES RAISED

ISSUES RAISED

-I-

Whether or not the stance of the appeal is maintainable in the court of law?

-II-

Whether or not the act of Dr. Cersei Lannister amounts to negligence on her part?

-III-

Whether or not the Trial Court has erred in finding Dr. Cersei Lannister guilty of Medical
Negligence under Section 304A of IPC?

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MEMORANDUM for APPELLANT SUMMARY OF ARGUMENTS

SUMMARY OF ARGUMENTS

[1] THE PRESENT APPEAL IS MAINTAINABLE

Under Section 482 of CrPC, to prevent abuse of the process of any court and to secure the ends
of justice, the Appeal should be entertained. As Dr Cersei Lannister, a 35-year-old Geneticist
worked in Iron Islands Life Hospital, was convicted by the Trial Court for the offence under
S.304A of IPC and her license was suspended for 7 years. She was very passionate about her
patients and held an exceptionally progressive record. This case gathered a lot of negative
media attention which resulted in gross tarnishing of her reputation in the society. If this appeal
is entertained, this will prevent the abuse of the process of law and it will secure ends of justice.

[2] THE ACT OF DR CERSEI LANNISTER DOES NOT AMOUNT NEGLIGENCE ON HER PART

Negligence cannot be attributed so long as he is performing his duties to the best of his ability
and with due care and caution. When it comes to the failure of taking precautions what has to
be seen 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.
The doctor has not been negligent in her part because she had done a proper research regarding
the disease and the drug to be taken and only after the consent of Mrs Targaryen (took twice)
she has administered the drug to her. So, Dr Cersei administered the drug to the patient with
due care and caution. She realised that the patient had not been out of the hospital even once in
those 12 years and became determined to discover any possible way to help her. Subsequently,
she helped the patient in getting the drug which was claimed to considerable cure for the disease
of which she was suffering. Hence, nowhere was the situation when there was established any
mens rea on the part of the doctor in her act. When the patient was living a monotonous life in
the hospital the doctor wanted to help the patient to discover any possible way and to cure him
from the the disease. She bought up the odds related to the drug to the patient and got consent
also. The Act of the doctor was not intended to cause death and was done by consent in good
faith for the patient’s benefit.

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MEMORANDUM for APPELLANT SUMMARY OF ARGUMENTS

[3] THE TRIAL COURT HAS ERRED IN FINDING DR CERSEI LANNISTER GUILTY OF MEDICAL
NEGLIGENCE UNDER SECTION 304A OF IPC.

S.304A applies where there is a direct nexus between the death of a person and the rash or
negligent act. There was a sufficient gap between both the dates to conclude that there was an
absence of nexus between the act of the patient and the alleged negligent act. The postmortem
reports of Mrs Targaryen confirmed that she had died of a Cardiopulmonary Arrest, and it was
registered as a case of “sudden unexplained death (SUD). Section 304A requires that the death
of any person must have been caused by the accused doing any rash or negligent act. As the
drug has also cured a considerable percentage of the KHALEESI diseases patients as well.
Within a week Mrs Targaryen showed a miraculous recovery and was declared fully cured. In
light of the above arguments, it can be concluded that Dr Cersei hasn’t acted rashly and
negligently. Section 90 of IPC cannot be lodged against the Appellant. The patient had neither
misconception of fact because every fact related to the drug was intimated to the patient, nor
was there any fear because the doctor did not pressurise the patient and got the consent. As the
chance of the treatment being fatal is expected to be 30 per cent at her age and the got the
consent also twice from the patient. The materials on record also do not prima facie show any
act of rashness or gross negligence on the part of the doctor. Hence, gross negligence was
absent.

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MEMORANDUM for APPELLANT ARGUMENTS ADVANCED

ARGUMENTS ADVANCED

ISSUE 1: Whether or not the stance of the appeal is maintainable in the court of law?

[1.1] THE PRESENT APPEAL IS MAINTAINABLE

It is most humbly submitted that the appeal is maintainable in the court of law. The present
appeal should be maintained to prevent abuse of the process of law and to secure ends of justice.
Acc. To S.482 of CrPC, “Nothing in this code shall be deemed to limit or affect the inherent
powers of the High Court to make such orders as may be necessary to give effect to any order
under this code, or to prevent abuse of the process of any court or otherwise to secure the ends
of justice.”1 As Dr Cersei Lannister, a 35-year old Geneticist worked in Iron Islands Life
Hospital,2 was convicted by the Trial Court for the offence under S.304A of IPC and her license
was suspended for 7 years.3 She was very passionate about her patients and held an
exceptionally progressive record.4 This case gathered a lot of negative media attention which
resulted in gross tarnishing of her reputation in the society.5 If this appeal is entertained, this
will prevent the abuse of the process of law and it will secure ends of justice.

ISSUE 2: Whether or not the act of Dr Cersei Lannister amounts to negligence on her part?

It is most humbly submitted that the act of Dr Cersei Lannister does not amount to negligence
on her part. The doctor administered the drug to the patient with due care and caution (2.1).
There was no mens rea on the doctor’s part at all (2.2). The Act of the doctor was not intended
to cause death and was done by consent in good faith for the patient’s benefit (2.3).

1
S.482, Criminal Code of Procedure, 1973.
2
Moot Prop para 1
3
Moot Prop para 19
4
Moot prop para 1
5
Moot prop 18

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MEMORANDUM for APPELLANT ARGUMENTS ADVANCED

[2.1] THE DOCTOR ADMINISTERED THE DRUG TO THE PATIENT WITH DUE CARE AND
CAUTION

Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of
his ability and with due care and caution.6 In Malay Kumar Ganguly Vs. Dr Sukumar
Mukherjee And Others,7 Hon’ble Supreme Court formulated certain points to be determined
by the courts while fixing individual liability of doctors observed as follows:
There cannot be, however, any doubt or dispute that for establishing medical negligence or
deficiency in service, the courts would determine the following:
(i) No guarantee is given by any doctor or surgeon that the patient would be cured.
(ii) The doctor, however, must undertake a fair, reasonable and competent degree of skill,
which may not be the highest skill.
(iii) Adoption of one of the modes of treatment, if there are many, and treating the patient with
due care and caution would not constitute any negligence.
(iv) Failure to act in accordance with the standard, reasonable, competent medical means at the
time would not constitute negligence. However, a medical practitioner must exercise the
reasonable degree of care and skill and knowledge which he possesses. Failure to use due skill
in diagnosis with the result that wrong treatment is given would be negligence.
(v) In a complicated case, the court would be slow in contributing negligence on the part of the
doctor, if he is performing his duties to the best of his ability.
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.8 The Hon'ble Supreme
Court in the case of Jacob Mathew v. State of Punjab and Anr.9 after examining every
ramification of medical negligence in the context of rising trend of the implication of a doctor
in a case of negligence and the court concluded that due care and caution should be taken in
taking cognizance of the offence of negligence against the doctor, as without adequate medical
opinion pointing to the guilt of the doctor would be doing a great disservice to the community
at large.10 In the instant case the doctor has not been negligent in her part because she had done

6
Achutrao Haribhau Khodwa v. State of Maharashtra, 1996 SCC (2) 634.
7
Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee, (2009) SCC 221.
8
Qamar jahan and anr. Vs. Dr. Nisar Ahmed Tyagi and Ors., 2019 SCC NCDRC 1626.
9
Jacob Mathew vs. State of Punjab and Ors, (2005) 6 SCC 1.
10
P. K. Sinha vs. The State of Jharkhand, (2009) 2 JLJR 195.

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MEMORANDUM for APPELLANT ARGUMENTS ADVANCED

proper research regarding the disease and the drug to be taken11 and only after the consent of
Mrs Targaryen (took twice)12 she has administered the drug to her. It is concluded that the
doctor administered the drug to the patient with due care and caution.

[2.2] THERE WAS NO MENS REA ON THE DOCTOR’S PART AT ALL

Sec. 304A, like other sections of the penal code, requires a mens rea or guilty mind.13 Mere
carelessness is not sufficient for a conviction under this section. This section, like other sections
of the Code, requires a mens rea or guilty mind and the rashness or negligence must be such as
can fairly be described criminal.14 It has been categorically laid down that the essential
ingredient of mens rea cannot be excluded from consideration when the charge in a criminal
court consists of criminal negligence.15 For negligence to amount to an offence the element of
mens rea must be shown to exist.16 The Blackstone's Criminal Practice describes it as under:
"In addition to providing that the accused satisfied the definition of the actus reus of the
particular crime charged, the prosecution must also prove mens rea, i.e., that the accused had
the necessary mental state or degree of fault at the relevant time. Lord Hailsham of St.
Marylebone said in Director of Public Prosecutions v. Morgan17 : 'The beginning of wisdom in
all the "mens rea" cases... is as was pointed out by Stephen J in Tolson (1889),18 that 'mens rea'
means a number of quite different things in relation to different crimes'. Thus, one must turn to
the definition of particular crimes to ascertain the precise mens rea required for specific
offences. While on this aspect, it is also instructive to refer to two English cases. Rex v.
Williamson, 1807-3 C and P 635, was a case where a man who practised as an accoucheur,
owing to a mistake in his observation of the actual symptoms, inflicted on a patient terrible
injury from which she died. After pointing out that in a civil case once negligence was proved,
the degree of negligence was irrelevant, Lord Ellenborough, the Lord Chief Justice, said. “In a
criminal court, on the contrary, the amount and degree of negligence are the determining
questions. There must be mens rea. In explaining to juries the test which they should apply to
determine whether the negligence in a particular case, amounted or did not amount to a crime,

11
Moot prop. para 6
12
Moot prop. para 12
13
Joan Mathaikal vs. State of Bihar and Ors, MANU/BH/1251/2007
14
Ved Khuller vs. State, MANU/JK/0049/1986
15
Supra note 9.
16
Maharaja Agarsen Hospital and Ors. Vs. Master Rishabh Sharma and Ors., (2020) 6 SCC 501.
17
Director of Public Prosecutions v. Morgan, [1976] AC 182.
18
Queen v. Tolson, (1889) 23 QBD 168.

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MEMORANDUM for APPELLANT ARGUMENTS ADVANCED

Judges have used epithets such as 'culpable', 'criminal', 'gross', 'wicked', 'clear', 'complete'. But
whatever epithet be used and whether an epithet is used or not, in order to establish criminal
liability the facts must be such that, in the opinion of the jury, the negligence of the accused
went beyond a mere matter of compensation between subjects and showed such disregard for
the life and safety of others, as to amount to a crime against the State and conduct deserving
punishment."19
Section 81 in The Indian Penal Code reads as:- Act likely to cause harm, but done without
criminal intent, and to prevent other harm—Nothing is an offence merely because of its being
done with the knowledge that it is likely to cause harm if it be done without any criminal
intention to cause harm, and in good faith to prevent or avoid other harm to person or property.
Explanation—It is a question of fact in such a case whether the harm to be prevented or avoided
was of such a nature and so imminent as to justify or excuse the risk of doing the act with the
knowledge that it was likely to cause harm.”20 In the instant case, Dr Cersei was very passionate
about her patients and held an exceptionally well record.21 She became quite sympathetic when
she realised that the patient had not been out of the hospital even once in those 12 years and
became determined to discover any possible way to help her.22 Subsequently, she helped the
patient in getting the drug which was claimed to considerable cure of the disease of which she
was suffering. Hence, nowhere was the situation when there was established any mens rea on
the part of the doctor in her act.

[2.3] THE ACT OF THE DOCTOR WAS NOT INTENDED TO CAUSE DEATH, AND WAS DONE BY
CONSENT IN GOOD FAITH FOR THE PATIENT’S BENEFIT

Section 88 of the IPC23 provides for an exemption for acts not intended to cause death, done
by consent in good faith for person's benefit and who has given a consent, whether express or
implied to suffer that harm or take the risk of that harm. The illustration given in Section 88 of
the IPC is of great significance. It is set out herein under:-

19
Yunusbhai Anwarbhai Karodia vs. State of Gujarat, MANU/GJ/0086/2018
20
S.81, Indian Penal Code, 1860.
21
Moot prop. 1
22
Mot prop. para 4
23
S.88, Indian Penal Code, 1860.

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MEMORANDUM for APPELLANT ARGUMENTS ADVANCED

"A, a surgeon, knowing that a particular operation is likely to cause the death of Z, who suffers
under a painful complaint, but not intending to cause Z's death, and intending, in good faith,
Z's benefit, performs that operation on Z, with Z's consent. A has committed no offence.”
From a perusal of the illustration given hereinabove under Section 88 of the IPC, it would be
manifest that a medical professional has been given total protection if the action is taken in
good faith for the person's benefit after taking his consent whether express or implied.24 It is
interesting to note what Lord Macaulay had himself to say about Indian Penal Code. We are
inclined to quote a few excerpts from his speech to the extent relevant for our purpose from
"Speeches and Poems with the Report and Notes on the Indian Penal Code".25 The doctor’s act
is saved from penal consequences by reason of the exception in Section 88 of the Code.26 The
question of good faith is always a question of fact to be determined in accordance with the
proved facts and circumstances of each case.27
In Bhappa Singh v. Ram Pal Singh and Ors,28 the Supreme Court considered the grant of
protection to an officer for an official act done in good faith. It will be admitted that when an
act is in itself innocent, to punish the person who does it because bad consequences, which no
human wisdom could have foreseen, have followed from it, would be in the highest degree
barbarous and absurd.” In the instant case, when the patient was living a monotonous life in
the hospital the doctor wanted to help the patient to discover any possible way and to cure him
from the disease. She bought up the odds related to the drug to the patient and got consent also
that time29 and administered the drug in the front of Mrs Sansa Stark who was appointed as her
caretaker. There is ample evidence to establish that the accused did in good faith. Hence, it is
concluded that the doctor acted in good faith for the patient’s benefit after getting consent from
the patient.

ISSUE 3: Whether or not the Trial Court has erred in finding Dr Cersei Lannister guilty of
Medical Negligence under Section 304A of IPC?

24
Hemchandra Lal Karn vs. The State of Bihar, MANU/BH/1870/2019
25
Lord Macaulay (Houghton, Mifflin and Company, 1874).
26
Hanif Usmanbhai Kalva and Ors. vs. State of Gujarat, 2015 (3) GLH 766.
27
Mulk Raj Singh vs. Union of India, AIR 1973 Delhi 169.
28
Bhappa Singh v. Ram Pal Singh and Ors, AIR 1982 SC 779.
29
Moot prop. para 8

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MEMORANDUM for APPELLANT ARGUMENTS ADVANCED

It is most humbly submitted that The trial court has erred in finding Dr Cersei Lannister guilty
of Medical Negligence under Section 304A of IPC. There was no direct nexus between the
death of the patient and the alleged negligent act (3.1). Section 90 of IPC cannot be lodged
against the appellant in this case (3.2). Gross negligence was absent on the doctor’s side (3.3).

[3.1] THERE WAS NO DIRECT NEXUS BETWEEN THE DEATH OF THE PATIENT AND THE
ALLEGED NEGLIGENT ACT

S.304A applies where there is a direct nexus between the death of a person and the rash or
negligent act.30 It applies to acts which are rash or negligent and are directly the cause of death
of another person.31 The hazard taken by the accused doctor should be of such a nature that
the injury which resulted was most likely imminent.32 "To impose criminal liability under
Section 304-A, Indian Penal Code, it is necessary that the death should have been the direct
result of a rash and negligent act of the accused, and that act must be the proximate and efficient
cause without the intervention of another's negligence.33 Sec. 304-A IPC requires that there
must be a direct nexus between the death of a person and a rash and negligent act of the accused.
A remote nexus is not enough.34 There was a sufficient gap between both the dates to conclude
that there was an absence of nexus between the act of the patient and the alleged negligent act.
The postmortem reports of Mrs Targaryen confirmed that she had died of a Cardiopulmonary
Arrest, and it was registered as a case of “sudden unexplained death (SUD)”.35

[3.1.A] DR. CERSEI ACT WAS NOT RASH AND NEGLIGENT

The ‘rash or negligent act’ means the act which is the immediate cause of death and not any
act or omission, which at most be said to be a remote cause of death.36 This section requires
that the death of any person must have been caused by the accused doing any rash or negligent
act.37 In other words, there must be proof that the rash or negligent act of accused was the

30
Kurban Hussain v. State of Maharashtra, AIR 1965 SC 1616.
31
Mahadev Prasad Kaushik v. State of U.P, AIR 2009 SC 125.
32
S. Alexander Xavier v. State of H.P and Ors., 2019 SCC HP 2226.
33
State vs. Sidhart Sawhney, 2020 SCC Del 198.
34
Dr. Satyandra Katewa vs. State of Rajasthan, 2020 SCC Raj 1530.
35
Moot Prop para 14
36
Abdul Ise Suleman v State of Gujarat, AIR 1994 SC 1911
37
Suleman Rehiman Mulani and Ors. vs. State of Maharashtra, AIR 1968 SC 829.

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proximate cause of the death.38 It could thus be said that the rash and negligent act referred to
in Section 304A means an act which is an immediate cause of death and not an act which can,
at best be said to be a remote cause of death.39 The requirement is that the death of any person
must have been caused by the accused by any rash or negligent act.40 In other words, there must
be cogent material to show that the rash or negligent act of the accused was the proximate cause
of death.41 It must be the cause causans; it is not enough that it may have been the cause sine
qua non.42 For criminal law, there are degrees of negligence and a very high degree of
negligence is required to be proved before a charge can be sustained under this section and also
Sections 337 and 338 of the IPC. In the case of negligence, the person accused does not do an
act which he is bound to do. Mere negligence is not enough to bring a case within the ambit
and scope of these sections. Negligence or rashness must be such as should carry with it a
criminal liability. Criminal rashness is hazarding a dangerous act with the knowledge that it is
so and that it may cause an injury. There is a breach of a positive duty.43 But in the instant case,
the patient died two weeks after getting the drug administered.44 As the drug has also cured a
considerable percentage of the KHALEESI diseases patients as well.45 Within a week Mrs
Targaryen showed a miraculous recovery and was declared fully cured.46 In light of the above
arguments, it can be concluded that Dr Cersei hasn’t acted rashly and negligently.

[3.2] SECTION 90 OF IPC CANNOT BE LODGED AGAINST THE APPELLANT

Also, section 90 of IPC47 cannot be lodged against the appellant as section 90 states that
Consent known to be given under fear or misconception—A consent is not such a consent as it
intended by any section of this Code if the consent is given by a person under fear of injury, or
under a misconception of fact, and if the person doing the act knows, or has reason to believe,
that the consent was given in consequence of such fear or misconception. In the instant case,
the doctor had disclosed the fact that in the data presented under the project he had found out
that Greyjoy Labs, the same company, which manufactured Mrs Targaryen’s medicines of the

38
Dr. Ashok and Anr. Vs. State of Maharashtra, 2020 SCC Bom 296.
39
State of Punjab v. Shiv Ram, (2005) 7 SCC 1.
40
V. Kishan Rao v. Nikhil Super Speciality Hospital, (2010) 5 SCC 513.
41
A. Srimannarayana vs. Dasari Santakumari, (2013) 9 SCC 496.
42
Experor V. Omkar Rampratap, 4 Bom LR 679
43
Kaushik Ambalal Oza vs. State of Gujarat, MANU/GJ/0018/2015
44
Moot Prop para 13
45
Moot Prop para 7
46
Moot prop para 12
47
S. 90, Indian Penal Code, 1860.

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KHALEESI disease, in research have claimed that the drug they were marketing for
Huntington's disease has also cured a considerable percentage of the KHALEESI disease
patients as well but the chance of the treatment being fatal is expected to be 30 per cent at her
age.48 So, the patient had neither misconception of fact because every fact related to the drug
was intimated to the patient, nor was there any fear because the doctor did not pressurise the
patient and got the consent. Hence, it is concluded that the consent was not given under any
fear of injury or misconception. Thus, Section 90 of IPC cannot be lodged against the appellant.

[3.3] ABSENCE OF GROSS NEGLIGENCE

The profession of doctors is considered as noble profession hence for filling any criminal case
against the doctor the petitioner must prove that the doctor has done some gross negligence.49
The word “gross” has not been used in Section 304A, 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”.50 The
expression ‘rash or negligent act’ as occurring in Sec. 304A has to be read as qualified by the
word “grossly”.51 It is the degree of negligence that determines whether a particular act would
amount to a rash and negligent act as defined under section 304A.52 "Whether he be licensed
or unlicensed, if he displays gross ignorance, or gross inattention, or gross rashness, in his
treatment, he is criminally responsible.53 Where negligence is an essential ingredient of the
offence, the negligence to be established by the prosecution must be culpable or gross and not
the negligence merely based upon an error of judgment.54 In deciding whether there was
criminal negligence on the part of the doctor it must be assured that there was gross negligence
on the part of the doctor in treating a particular patient.55
It has been observed by the Privy Council that a doctor is not criminally responsible for a
patient's death unless his negligence or incompetence passed beyond a mere matter of
compensation and showed such disregard for life and safety as to amount to a crime against the
State.56 In order to fasten criminal liability gross negligence on his part amounting to

48
Moot prop para 7
49
Sushil Ansal v. State, (2014) 6 SCC 173.
50
Supra note 9.
51
Nizam’s Institute of Medical Sciences vs Prashant S. Dhanaka, (2009) 6 SCC 1.
52
S.N. Husain v State of A.P, (1972) 3 SCC 18.
53
Roscoe's Law of Evidence (Fifteenth Edition)
54
Syed Akbar v. State of Karnataka, (1980) 1 SCC 30.
55
Ramchand Chetandas Bathija vs Pijush Mukherjee, 2007 Cal HC 863.
56
Supra note 13.

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recklessness has to be proved.57 Criminal Negligence is the gross and culpable neglect or failure
to exercise that reasonable and proper care and precaution to guard against injury either to the
public generally or to an individual in particular, which, having regard to all the circumstances
out of which the charge has arisen it was the imperative duty of the accused person to have
adopted.58 Criminal negligence must always reach the stage of gross.59
While quoting various decisions the Hon'ble Supreme Court that criminal negligence is the
gross and culpable neglect or failure to exercise that reasonable and proper care and precaution
to guard against injury either to the public generally or to an individual in particular, which
having regard to all the circumstances out of which the charge has arisen, it was the imperative
duty of the accused person to have adopted.60 In the instant case, the doctor before
administering the drug to the patient she had done the detailed study on the disease.61 She found
out the data presented by the Greyjoy labs, the same company; which manufactured Mrs
Targaryen’s medicines of the KHALEESI disease, in research have claimed that the drug they
were marketing for Huntington's disease has also cured a considerable percentage of the
KHALEESI disease patients as well.62 However, the chance of the treatment being fatal is
expected to be 30 per cent at her age and the got the consent also twice from the patient.63 The
materials on record also do not prima facie show any act of rashness or gross negligence on the
part of the doctor. Gross criminal negligence is not made out under the circumstances of the
case so far as the petitioner is concerned. Hence, it is concluded that no case of recklessness or
gross negligence has been made out against the doctor to compel him to face the trial for an
offence under Section 304A of the IPC.

57
Martin F. D’Souza v Mohd. Ishfaq, AIR 2009 SC 2049.
58
Prabhakaran vs. State of Kerala, MANU/SC/2502/2007
59
Krishna Bahadur Chetri vs. State of Assam, 1979 CriLJ 1258.
60
Joan Mathaikal vs. State of Bihar and Ors, MANU/BH/1251/2007
61
Moot Prop para 6
62
Moot prop para 7
63
Moot prop para 7

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MEMORANDUM for APPELLANT PRAYER

PRAYER

WHEREFORE IN THE LIGHT OF ISSUES RAISED, ARGUMENTS ADVANCED, AND AUTHORITIES

CITED, IT IS HUMBLY PRAYED THAT THIS HON’BLE COURT

I. The stance of appeal is maintainable;

II. The act of Dr Cersei Lannister does not amount to negligence on her part; and
III. The Trial Court has erred in finding Dr Cersei Lannister guilty of Medical
Negligence under Section 304A of IPC.

AND PASS ANY OTHER ORDER, DIRECTION, OR RELIEF THAT THIS HON’BLE COURT MAY DEEM
FIT IN THE INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE.

All of which is humbly prayed,

T-18

Counsels for The Appellant

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