Medico Legal Reporter Journal PDF

Medico-Legal Reporter, Inaugural Issue
June 2018
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Editorial Board
Associate Editors:
 N.B. Bardhan, Director-Central Forensics Science Lab, Central Bureau of Investigation,
New Delhi
 Ravinder Chauhan, Senior Scientific Assistant (Ballistics), Central Bureau of
Investigation, New Delhi
 Carlos A. Gutierrez, Science Director and Instructor of True Forensic Science, USA
 Richard Albert, Professor of Law, Boston College Law School
Prof. (Dr.) Prashant Agrawal, HOD, Division of Forensic Sc., SBAS, Galgotias University,
Noida
 Dr. Rajeev Kumar, Associate Professor, Division of Forensic Sc., SBAS, Galgotias
University, Noida
 Prof. (Dr.) Pradeep Raghav, HOD-Orthodontics, Subharti Dental College, Meerut
 Pallavi Pratap, Advocate on Record, Supreme Court of India
 Lalit Mudgal, Head of Prosecution Dept., Govt. of U.P.
Executive Editors:
 Mahipal Singh Sankhla
 Ankit Gupta
 Komal Yadav
 Mayuri Kumari
 Manisha Nandan
 Kirti Sharma
 Shreya Gupta
 Gunjan Bhagchandani
Publishing Editor & Co-ordinator:

Ankit Gupta, Co-Founder- Legal Desire Media & Publications
Editor-in-Chief:
Anuj Kumar, Founder- Legal Desire Media & Publications
medicolegalreporter.com
Foreword
N. B. BARDHAN
Director
CFSL, CBI, New Delhi
I am pleased to know that the “Legal Desire Media & Publications” is going to organize first
international conference Medico Legal Issue & use of Forensic Science in Criminal Justice System on
17Th June 2018 and launch the inaugural edition of Medico-Legal Reporter, A quarterly published
International Journal on Medico-Legal Issues and Cases. Solve crimes by collecting and analyzing
physical evidences and other circumstantial evidences for the purpose of criminal justice system. I
hope that this journal will provide a suitable platform for sharing disseminating the ideas among
academicians, research scholars, lawyers, law enforcement officers and other related professionals and
will provide an opportunity for all professionals to learn about the latest trends & techniques that are
being practiced in the area across the globe and come out with useful suggestions.
I wish the journal would be a success and hope that the Legal Desire and Media Publications will be
the epicenter at activities to promote and propagate the scientific knowledge of medico legal and use
of Forensic Science in Criminal Justice system among young aspirants.
N. B. BARDHAN
Introduction
I am pleased to present before the very first edition of ‘Medico-Legal Reporter’ quarterly published
by Legal Media and Publications family. This publication is informative for lawyers, doctors,
students and general public. Very few people in India are aware about Medical Negligence and
legal issues concerning this act. This publication answers the question, ‘What does law have to do
with Doctors in case of Medical Negligence?’ Law has bearing on all aspects of life, Medical
science is also no exception. The influence of law on Medical profession has generally increased
from last few decades, all thanks to lay society that has questioned the medical profession like
never before and have been fighting for justice.
The journal is a storehouse of recent cases decided by Supreme Court of India, High Courts of
various States and other courts with conclusive briefs including the cause of action, contentions of
both the parties, law applied, judgment of the court and rationale of the judgment.
Through the medium of this publication, Legal Desire has entered in the vast field of Medical
Science for providing indepth analysis, research and publications for our reader’s which will
benefit them for getting aware about medico-legal issues and concerns. It is must read for every
practicing doctor, lawyers in field of medical negligence, both medical and law students. This
Journal is also an attempt to aware masses about medical negligence by providing a storehouse of
in-depth analysis of various recent Judgments of Court of Law, so that the public may not file cases
against doctors unnecessarily and may file cases in genuine matters in such a way that they get the
justice.
This journal will also attempt to give simple explanations of various laws and legal issues affecting
doctors by citing various court cases and their decisions against/for doctors.
I hope you will find this first edition of ‘Medico-Legal Reporter’ useful. We are open for accepting
your suggestions and feedbacks for upcoming editions.
Anuj Kumar
Founder & Editor-in-Chief,
Legal Desire Media & Publications
anuj@legaldesire.co
From the Desk of Associate Editor
With the modernization of Medical Science and changing scenario, doctors have to adapt to
the situation as they may have to face such legal hassles, which is intangible and disturbing
sometimes. It is imperative that all doctors should be aware of the medico legal aspects of the
medical field.
This journal will attempt to give simple explanations of various laws and legal issues affecting
doctors by citing various court cases and their decisions against/for doctors. There is the need
for maintaining the records officially and professionally to protect against any commercial,
legal and medico-legal litigation. Records are the most important factor needed to prevail in
the lawsuit. Legally a doctor records carry more weight than patient’s recollections. The legal
process is difficult and distressing to navigate, so it is best to avoid this when possible.
Once a negligent lawsuit is filed a complex legal maze is opened. Thereafter Medical
practitioner will need the help of a competent attorney who specializes in such litigation. The
best defense is always avoiding the lawsuit in the first place.
(Prof.) Dr. Pradeep Raghav

HOD, Orthodontics, Subharti Dental College, Meerut
THE JOURNAL IS DIVIDED INTO 2 PARTS:

PART 1: RESEARCH PAPERS
PART 2: CASES DIGESTS
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MEDICO-LEGAL REPORTER INAUGRAL ISSUE MEDICOLEGALREPORTER.COM
PART 1: RESEARCH PAPERS

TABLE OF CONTENTS
Applicability of Forensic Science in Criminal Justice System in India with special emphasis on Crime
Scene Investigation ................................................................................................................................. 2
Sonia Kaul Shali
GENDER BIASED LEGISLATIONS UNDER HEALTH LAWS WITH REFERENCE TO THE
MEDICAL TERMINATION OF PREGNANCY ACT, 1971 and MTP RULES, 1975. ..................... 12
Katiyani Juneja
Toxicity of Amygdalin: A Significant and Emphasizing Facet of Study in Forensic Toxicology ....... 18
*Neha Jain, **Dr. J.R. Sethi, **Dr. A.C. Rajvanshi
Criminal Poisoning with Neurotoxic fatal exposures & its medicolegal implications - a case analysis
& review. ............................................................................................................................................... 26
Dr Vivekanshu Verma
Investigation of Time since Death by Detective Insects ....................................................................... 31
Mayuri Kumari & Kirti Sharma
Foots Prints: A Evidence of Locomotive from Juridical Outlook ........................................................ 38
Manisha Nandan
Medical Negligence: The Dark side of the Noble Profession ............................................................... 45
Akankhya Kabi
The Role of Human DNA Profiling in the Criminal Justice System: An Indian Perspective............... 56
Rakesh Chandra
1
Applicability of Forensic Science in Criminal Justice System in India with
special emphasis on Crime Scene Investigation
Sonia Kaul Shali1
Introduction
Criminal justice system comprises of a particular division or the set of processes, bodies and institutions
that plan to protect or restore the mechanism of social control2. It can also be defined as ‘the organized
or structured ways in which society responds to certain behaviours and people it regards as deviant,
challenging, distressing, intimidating, troublesome and undesirable3. Primarily, the administration of
criminal justice system rest on police, prosecution, courts and prisons. These four organs are engaged
in the crucial role of deterrence, recognition, prosecution, arbitration and penalization or punishing of
offenders in society. An efficient criminal justice system guarantees a secure and peaceful society. In
reality, the complete subsistence of an organized society depends upon good and effective criminal
justice system4.
Speaking about the functionaries of the criminal justice, the essential role is that of the Magistrates and
courts because they are wholly accountable for deciding the culpability or otherwise of the alleged
offenders and determining their punishment. This process of deciding the culpability of offenders by
courts is a complex one involving appreciation of facts and evidence and establishing the charge sought
to be proved. In the commission, they are supported by a dedicated investigative agency, the police.
The latter are assigned with the essential task of detecting and investigating crimes for the purpose of
apprehending the alleged offenders and bringing them to justice. Any investigation should be supported
with evidence. Truth is positioned in a Court of Law only when it is having firm and sound foundation
of evidence”5.
In the last few decades, the infusion of technology in crime investigation has been a major breakthrough
in the process of advancement of criminal justice. Police utilize scientific tools and techniques to detect
a crime, reconstruct the crime scene, identify the alleged offender and establish vital links; the courts,
on the other, take account of these physical evidences, otherwise infallible, and determine with
enhanced accuracy the innocence or guilt of the offender.
Somewhere, the efficiency and effectiveness of the criminal justice functioning has come to be
intertwined with the extent of use of technological tools in crime investigation.
Defining Forensic Science

Forensic Science is defined as “The application of science to those criminal and civil laws that are
enforced by the police agencies in a criminal justice system”. Forensic Science deals with the
application of the knowledge and methodology of various disciplines of science to legal matters. For
evidence analysis, it involves the use of multiple disciplines such as medicine, physics, forensic
chemistry and biology, DNA profiling, computer science and engineering. For example, physics is used
1
Associate Professor of Criminology and Criminal Justice Administration, Karnavati University, Gandhinagar, Gujarat.
Email: soniashali@yahoo.com
2
FRANCIS PAKES (ED), COMPARATIVE CRIMINAL JUSTICE Pg. No.1 ( Routledge, Oxon, Third Edition/2015).
3
DAVID SHICHOR, THE MEANING AND NATURE OF PUNISHMENT, (Waveland Press, Inc. 2006).
4
Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, Volume I, 2003.
5
U. S. Misra, CBI-The Role & Challenges 13 NPAJ Vol. 57 (1 (2005).
2
to recognize the blueprint of a blood scatter; biology helps to establish the basis of an anonymous
suspect and chemistry helps us to find out the chemical composition of various drugs. Therefore, the
function of forensic science in criminal justice and the legal system is often underestimated and
extremely critical in nature.
In ancient India, the idea of forensic science is not a new one as medical belief was regularly applicable
to the requirements of the law. Sir William Herschel was one of the first to advocate the use of
fingerprinting in the identification of criminal suspects. Fingerprint evidence was first accepted in an
Argentine court in the 1890s and in an English court in 1902. Moreover, Forensic evidence is a discipline
that works in accordance with the parameters of the Indian legal system. Its function is to provide direction to those
conducting criminal investigation and to provide to magistrates/judges the correct information upon which they can
have full trust in determining criminal and civil dispute. This is also helpful in resolving the criminal and civil cases.
Further, Forensic science is an incorporation of almost all capabilities of knowledge, a crucial and proficient resource
that makes all dispensation of justice in criminal, civil, regulatory and social contexts possible. It helps in defining
all the applications of science in responding questions that are of legal significance. In present times,
Forensic science is a highly developed scientific procedure that is used in criminal and civil
investigations, it is capable of answering important questions and forms an integrated part of criminal
justice system6. It comprises of all renowned techniques such as fingerprint analysis, DNA analysis,
ballistics and explosives, firearms, culture etc. It facilitates to convict those guilty of crime as well as can
pardon the innocent.
Role of Forensic Science in Crime Investigation

Forensic science is one of the significant characteristics of criminal justice system. Fundamentally, it
deals with exploration of scientific and physical clues gathered from the crime scene. Forensic science
explains the distinctiveness (who) of the suspect who committed the crime. The evidence clearly
specifies the nature (what) of the crime committed. The circumstantial evidences also speak about the
time (when) of the incident. The forensic evidence proves the location of the offence (where/crime
scene).The forensic investigation also observes the method (how) of the offender. Finally, comes to
conclude the reason behind the crime. The forensic investigators recreate the distinctiveness of the
criminal and the victim7.
During the whole process of criminal investigation, evidence is gathered from the location of crime or
from a person who is an eye witness to the whole incident, examined in a crime laboratory and then the
results are presented in the court. Every crime scene is exceptional in nature and each case presents its
own challenges8. Forensic science plays a crucial role in the criminal justice system by providing
scientifically based information through the analysis of physical evidence, the identity of the culprit
through personal clues like fingerprint, footprints, blood drops or hair, mobile phones or any other
gadgets, vehicles and weapons. It associates with the criminal through objects left by him at the sight
and with the victim or carried from the scene and the victim. On the other hand, if the clues recovered
do not link the accused with the victim or the scene of occurrence, the innocence of the accused is
established. Forensic science, thus, also saves the innocent. Due to the emergence of DNA technology
as a modern method of forensic science, provides wonderful amount of information to the investigating
officers that enable him to find the criminal purely on the basis of scientific evidence which he has left
6
Isha Tyagi and Nivedita Grover, Development of Forensic Science and Criminal Prosecution-India, , 2 IJSRP Vol.4
(2014).
7
N. B. Narejo, M. A. Avais, Examining the Role of Forensic Science for the Investigative-Solution of Crimes, 252 SURJ
(SCIENCE SERIES) Vol. 44(2) 2012.
8
Forensic Sciences, National Institute of Justice, Office of Justice Programs,
http://www.nij.gov/topics/forensics/pages/welcome.aspx, (last visited on 15.2.2016).
3
at the location of crime9.
Legal Provisions Supporting Criminal Investigation

In India, the application of forensic science to crime investigation and trial has to stand the
limitation of law. The predominant questions therein are: viz.
a) How far such techniques are legitimate and supported by any authority?
b) How far these forensic techniques helpful in crime investigation?
c) How could we obtain evidentiary importance from the forensic experts?
As per Articles 20(3) of the Indian Constitution, no person accused of any offence shall be compelled
to be a witness against himself. Article 20(3) is based upon the presumption drawn by law that the
accused person is innocent till proved guilty. It defends the accused by protecting him from the probable
agony/torture during investigation during detention. Criminal law believes an accused as innocent until
his guilt is proved beyond reasonable doubt. The Universal Declaration of Human Rights, Article
11, “ Right to the presumption of innocence” states that "Everyone charged with a penal Offence
has the right to be presumed innocent until proved guilty according to law in a public trial at which he
has had all the guarantees necessary for his defence.10"
Article 20 (3) of the Constitution of India guarantees fundamental right against self incrimination and
guards against forcible testimony of any witness. The fundamental right guaranteed under Article 20
(3) is a protective umbrella against testimonial compulsion in respect of persons accused of an offence
to be witness against themselves. The protection is available not only in respect of evidence given in a
trial before Court but also at previous stage. The protection against self-incrimination envisaged in
Article 20 (3) is available only when compulsion is used and not against voluntary statement, disclosure
or production of document or other material11. This right has been taken to ensure that a person is not
bound to answer any question or produce any document or thing if that material would have the
tendency to expose the person to conviction for a crime12.
Sec. 73 of the Indian Evidence Act gives authority to the court to direct any person including an accused
to allow his finger impressions to be taken. The Supreme Court has also held that being compelled to
give fingerprints does not violate the constitutional safeguards given in Art.
20(3)13.
There are undoubtedly many queries as to whether forensic evidence violates Art. 20(3) of Indian
9
Jyotirmoy Adhikary, DNA Technology in Administration of Justice, (LexisNexis, Butterworths, 2007)
10
Universal Declaration of Human Rights, United Nations High Commissioner For Human
Rights,http://www.icnl.org/research/library/files/Transnational/UNIVERSAL_DECLARATION_OF_HUMAN_RI GHTS.pdf (last
visited on 9.2.2016).
11
Justice U.C. Shrivastava, Immunity from Self-Incrimination under Art. 20(3) of the Constitution of India, JJTRI, U.P.,
http://ijtr.nic.in/articles/art19.pdf (last visited on 8.2.2016).
12
McDougall, Justice Robert, The Privilege against Self-incrimination: a time for reassessment , Paper presented at New
South Wales Bar Association, 18 October 2008,
http://www.supremecourt.lawlink.nsw.gov.au/agdbasev7wr/supremecourt/documents/pdf/mcdougall181008.pdf, (last visited
on 29.05.2018) p. 2;
13
Gaurav Aggarwal, Smart Study Series Forensic Medicine &Toxicology 73 (ELSEVIER A division of Reed Elsevier India
Private Limited, Gurgaon Haryana), 2009).
4
Constitution or not? In The State of Bombay v. KathiKaluOghad& Others, 14 the court held that giving
thumb impression, specimen signature, blood, hair, semen etc. by the accused do not amount to ‘being a
witness’ within the meaning of the said Article. The accused, therefore, has no right to object to DNA
examination for the purposes of investigation and trial.
The Bombay High Court in another significant verdict in the case of, Ramchandra Reddy and Ors.
v.State of Maharashtra, 15upheld the legality of the use of P300 or Brain finger-printing, lie- detector
test and the use of truth serum or narco analysis. The court upheld a special court order allowing SIT to
conduct scientific tests on the accused in the fake stamp paper scam including the main accused, Abdul
Karim Telgi. The verdict also maintained that the evidence procured under the effect of truth serum is
also admissible.
In a 2006 judgment, Dinesh Dalmia v State16 , the Madras High Court held that subjecting an accused
to narco-analysis does not tantamount to testimony by compulsion. However, in a subsequent case, i.e.,
Selvi & Ors v. State of Karnataka & Anr17, the Supreme Court questioned the legitimacy of the
involuntary administration of certain scientific techniques for the purpose of improving investigation
efforts in criminal cases. In the above mentioned case, the Supreme Court held that brain mapping and
polygraph tests were inconclusive and thus their compulsory usage in a criminal investigation would
be unconstitutional.18
The Code of Criminal Procedure, 1973 was amended in 2005 to facilitate the assortment of a host of
medical details from accused persons upon their arrest. Section 53 of the Criminal Procedure Code 1976
provides that upon arrest, an accused person may be subjected to a medical examination if there are
“reasonable grounds for believing” that such examination will afford evidence as to the crime. The
extent of this assessment was expanded in 2005 to include “the examination of blood, blood-stains,
semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by
the use of modern and scientific techniques including DNA profiling and such other tests which the
registered medical practitioner thinks necessary in a particular case.19”
On the other hand, the provision that was introduced through an Amendment in 2005 is restricted to the
cases related to rape only. This section also does not permit a complainant to collect blood, semen, etc,
for bringing criminal charges against the accused; neither does it apply to complaint cases 20.In similar
lines, Section 164A Code of Criminal Procedure, 1973 offers for the medical examination of a woman
who is an alleged victim of rape within twenty four hours and such examination includes the DNA
profiling of the woman. Both the sections allow any medical practitioner within the meaning of Sec.
2(h) Indian Medical Council Act, 1956 to collect a DNA sample. The matter lies as to whether every
medical practitioner is competent enough to collect and preserve DNA evidence or not. It is a renowned
fact that DNA evidence is completely dependent upon suitable collection and preservation of sample.
Any simple error or negligence can contaminate the sample and contaminated sample is absolutely of
no use.
14
AIR 1961 SC 1808, 1962 SCR (3) 10.
15
2004 All MR (Cri) 1704.
16
2006 Cri. L. J 2401
17
AIR 2010 SC 1974.
18
ibid.
19
http://www.genewatch.org/uploads/f03c6d66a9b354535738483c1c3d49e4/India_DNA_Bill_Memo_2.0.pdf, (Accessed on
25.5.2018).
20
Supra, n. 8.
5
Under Indian Evidence Act, 1872, forensic report is regarded as a “belief” tendered by expert. An expert
may be defined as a person who, by practice and observation, has become experienced in any science
or in his area of expertise. He is one who has devoted time and knowledge to a special branch of
learning, and is thus especially skilled in that field wherein he is called to give his expert judgment21.The
real function of the expert is to put before the court all the equipments, together with explanations which
induce him to come to a certain conclusion, so that the court, although not an expert, may form its own
judgment by its own observation of those equipments22. The trustworthiness of an expert witness
completely depends on the reasons stated in support of conclusion and the tools, techniques and
materials, which form the basis of such conclusion23.Although, the court can completely disagree with
the conclusions drawn by the expert and depend on other evidences for the purpose of judgment.
The National Draft Policy on Criminal Justice Reforms has suggested that Indian Evidence Act needs
some amendments to make scientific evidences admissible as ‘substantive evidence’ rather than
‘opinion evidence’ and establish its probative value, depending on the sophistication of the concerned
scientific discipline24.
Restrictive use of Forensic Evidence in Indian Legal Scenario

The most important function of forensic investigation is to exchange doubt into reasonable certainty of
either guilt or innocence. However, till recently, the courts had to depend heavily on the non-scientific
evidence because of the non-availability of proper technologies. The study conducted in 2011 by
Supreme Court and Hugh court shows only 47 cases; DNA has played an important role. Out of these,
23.4% decisions were given by Delhi High Court alone. Furthermore, DNA evidence had been used in
merely 4.7% murder cases and 2.3% rape and murder25. In yet another study of rape cases over the
decade, the author has indicated that there has been an increased reliance by Indian courts on forensic
evidence and DNA over the years, even though the figures are abysmally low and concerted efforts are
needed to include scientific evidence in all criminal matters, where applicable.26
Yet, the domain of forensic science in India has not been merged. So many times, neither the arbitrator,
nor the attorney nor even the police force appreciate completely, the advances or the widespread,
promising potentialities of the science and the blend of new technologies together, methodologies,
modalities and research. This multitasking and multi-professional approach of forensic science needs an
inter-professional approach which is missing for many times.27
The Committee on Reforms of Criminal Justice System also signifies that the present stage of
applicability of forensic science in crime scene investigation is somewhat low in our country, with
21
Pragati Ghosh , Evidentiary Value of Expert Evidence under Indian Evidence Act, 1872,
http://www.shareyouressays.com/119180/evidentiary-value-of-expert-evidence-under-indian-evidence-act-1872, (accessed on
26.05.2018).
22
S. C. Parakh, ‘Expert Witness’ 421 IJA Vol.55 (2011).
23
Prof. (Dr.) B. P. Tiwari, Evidentiary Value of Expert Opinion, 23 IIRRJ Vol. IV (2012).
24
Report of the Committee on Draft National Policy on Criminal Justice, Ministry of Home Affairs, Government of India,
July, 2007.
25
The Role of DNA in Criminal Investigation- Admissibility in Indian Legal System and Future Perspectives,15-21 IJHSSI
Vol. 2 (2013).
26
Dipa Dube, ‘Determining the Applicability of DNA Evidence in Rape Trials in India’, Vol. 2 (1), IJSSR, 2014
27
Justice Jitendra N. Bhatt, A Profile of Forensic Science in Juristic Journey, http://www.ebc-
india.com/lawyer/articles/2003v8a4.htm (last visited on 28.2.2016).
6
only 5-6% of the registered crime cases being referred to the FSLs and Finger Print Bureau put
together. 28 There is critical requirement to carry forward the improvement in the prevailing
conditions, more so, when the conviction rate is constantly declining over the years in the country and
the forensic evidence, being clinching in nature, can overturn the trend to some extent.
The motives for such unwillingness of the courts to use forensic evidence in criminal scene investigation
are diverse. Initially, the unprofessional conduct of physical evidence, including improper collection,
preservation, non collection of clue evidence, non-maintenances of chain of custody, as well as
negligent and delayed dispatch of physical evidence for scientific analysis has been repeatedly noted
upon by the courts. Not sending an accused for medico-legal examination, non-lifting of fingerprints
by the I.O or when bloodstained mortal object had been sent for chemical examination without covering
the same by a wrapper immediately after seizure of the same then it’s obvious that court would reject
the report.29
Sometimes, scientific evidence suffers from some kind of technical lacunas such as non-mention of
blood group in Serologist’s report30, tests were not done meticulously31, no supportive data were
provided by the Expert along with report32, delayed examination of exhibits at the laboratory etc.33
Delayed inspection of exhibits at the laboratory can turn the advantages of a case into a negative version.
The delayed inspection of biological, serological and viscera exhibit in the cases of poisoning puts a
big question mark on the legitimacy of evidence. The decomposition of such exhibits can generate
alcohol in the exhibits, on long standing duration and may also not permit the detection of poison and
conclusive serological results; likewise, in cases of drunkenness, the blood alcohol or urine alcohol
negative samples may test positive for the presence of alcohol due to self- generation of alcohol on the
putrefaction of samples34. Sometimes, it is not possible for the Autopsy Surgeon to elucidate the manner
of death35.
The purpose of medico-legal examination is to reveal the real cause of injury or death. It can
undoubtedly notify the nature of death i.e. accidental/suicidal/homicidal and injury also. Therefore, the
documentation of medico-legal examination should be organized very systematically and carefully in
order to arrive at scientific conclusion which in many cases is not done in an appropriate manner. A
forensic record thus, is still poorly incorporated into the investigation and crime analysis process, in
spite of evidence of its immense potential in various situations and learnings36.
28
Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, Report,
Volume 1, March 2003.

29
A. Dutta, R. C.Arora,and Dr. P.C. Sarmah, Analysis of Problems related to Forensic Examination in Offences against
Human Body and Need for Auditing, Vol.LVIII (3),IPJ& pg. no.10-11(2011).
30
Kasha Beharav. State of Orissa, AIR 1987 SC 1507.
31
Himanashu Pahari v.State, (1986) Cri. L.J. 622.
32
Mahmood v. State of U.P., AIR 1976 SC 69.
33
Mahavir Singh v.State, Cri. Appeal No. 498/2007, decided on 22.5.09.
34
ibid.
35
Enamul Haque v. State of West Bengal, CRM 17348 of 2010 & AST 1114 of 2010.
36
Olivier Ribaux, Simon J. Walsh and PierreMargot, The contribution of forensic science to crime analysis and
investigation: Forensic intelligence, 171-181 FSI vol.156 (2006).
7
Constraints Faced By Allied Subsidiaries

Modern techniques of criminal investigation are such domains that are still unidentified to the police
force because they are not skilled and trained about them. The police are blamed to be investigating
crimes by using same old, conventional methods and techniques37.It has been maintained that improper
scientific knowledge with the investigation officer, the first respondent to the crime coupled with
inappropriate conduct of scene of crime, may either contaminate the samples required to be tested or
destroy the evidentiary value, which could be obtained on proper lifting, sealing, forwarding to the
Expert/Laboratory for examination. Consequently, association of Forensic Experts with the police
investigating agency right from the commencement and their effective liaison with the Medico-legal
Expert can contribute very considerably and sometime positively, to the resolving of the crime38.
In India, a serious concern is also about the self-determination of forensic labs and its self-regulation.
The state and central forensic science laboratories are under the direct administrative management of
the law enforcement authorities. The State and Union Territory Forensic Science Laboratories is either
directly functioning under the respective Home Department or through police establishments39.
Forensic science institutions are part of police setup and therefore, cannot maintain absolute
independence at all levels40.
Forensic laboratories lack the necessary manpower and infrastructure. They are staff served. Sometimes
proper infrastructure and equipments are missing. They lack proper funding also. Surprisingly, there is
also a lack of co-ordination between these two wings, i.e. forensic expert and police force.
The Report of the Committee on Draft National Policy on Criminal Justice highlights that guidance,
accreditation, standard setting, professionalism and research and development of Forensic science
should receive adequate attention in the policy framework41.
The Malimath Committee also recommended that more well-resourced laboratories should be
established to handle DNA samples and evidence, as well as particular rule should be enacted giving
guidelines to the police setting uniform standards,42 for attaining genetic information and generating
adequate safeguards to prevent misuse of the same43. Lately, Justice Verma Committee44 laid down the
need for proper storage and preservation of DNA samples, especially in sexual assault cases.
Latest Judicial Pronouncements: Here are some of the latest cases where court has relied on forensic
evidence and given verdict by taking into consideration of this piece of evidence.
37
James Vadackumchery, The Police, the Court, and Injustice, 97 (APH Publishing Corporation, New Delhi, 1997).
38
The forensic use of bio-information: ethical issues, Nuffield Council on Bioethics, http://nuffieldbioethics.org/wp-
content/uploads/The-forensic-use-of-bioinformation-ethical-issues.pdf (last visited on 25.5.2018).
39
V. R. Dinkar, ‘Forensic Scientific Evidence: Problems and Pitfalls in India’, 79-84, IJFSP Vol. 3 (2015).
40
Peerzada Yasir Latif Handoo, Forensic Science: A Boon to Criminal Justice, Administration with Special Reference to
State of J&K.,53 JIARM Vol.1 (2013).
41
Supra n. 23.
42
Supra n. 27.
43
Supra n. 5.
44
Report of the Committee on Amendments to Criminal Law, 23 rd January, 2013.
8
In Krishan v. State of Haryana45, the Trial Court, considering the facts and circumstances of the case,
more particularly relying on the FSL report convicted the appellant under Sec. 376 and Sec. 506 of IPC.
In a recent judgment in case of State of Gujarat v. Mohan Hamir Gohil and others46, Division Bench
of this Court after referring to various authorities on DNA technology, different methodology used for
testing and the scientific advancements made world over, noticed that over a period of time the Courts
across the world including in India have been placing heavy reliance on DNA results. It was
observed " Over a period, the technology of DNA testing has made great strides and achieved
sophistication leading to results which can often times be used either for inclusion or e x c l u s i o n of
the accused.
Some Landmark Judgments in Forensic Science Investigation

In criminal cases specifically based on circumstantial evidence, forensic science plays a very crucial
role, which may assist in establishing the evidence of crime, identifying the suspect, ascertaining the
guilt or innocence of the accused. One of the major activities of the investigating officer at the crime
scene is to make thorough search for potential evidence that have probative value in the crime.
Investigating Officer may be guarded against potential contamination of physical evidence which can
grow at the crime scene during collection, packing and forwarding. Proper precaution has to be taken
to preserve evidence and also against any attempt to tamper with the material or causing any
contamination or damage.”47
In certain cases relying on scientific evidences including DNA profile and oral evidences, the accused
were convicted and punished with death sentence and fine by the Sessions Judges, for gruesome murder
aged about 10 years after subjecting the offender to carnal intercourse and then strangulating him to
death48.
In Nitish Katara murder case, the detection of the deceased victim was difficult due to availability of
only a small portion of one un-burnt palm with fingers. Here also, DNA profile helped in identifying the
body remains by matching DNA profile with parents of the deceased
which helped the High Court of Delhi to uphold the conviction of the accused49.
In Sushil Mandal v. The State represented by CBI, the petitioner, father of the deceased boy, challenged
the findings of DNA profiling. The deceased boy fell in the adolescent cusp of mutual infatuation with
a school girl and parents of both were advised by school administration for keeping check on them.
Later, the boy was found reportedly missing and, after a week, a fully decomposed unidentified body
was fished out from a lake50. The petitioner claimed of not identifying the body remains and clothes of
his missing son. He preferred habeas corpus petition in the high court accusing the father of the girl and
praying the high court for directing the investigation by the Central Bureau of Investigation (CBI). The
DNA test of the body remains matched with the genetic profiles of the parents (the petitioner and his
wife) of the deceased. The skull super imposition test also established link between the deceased and
the recovered body. But petitioner refused to accept the truth revealed by these scientific tests on one
pretext or the other despite the fact that DNA test was repeated for his satisfaction. The apex court
45
(2014) 13 SCC 574.
46
R/CR.A/224/2012
47
2014(5) SCC 509
48
(2014) 4 SCC 69.
49
Vishal Yadav v. State of Uttar Pradesh (2014) SCC Online Del. 1373.
50
2014 SCC Online Mad 7362 : (2014) 2 MWN (Cri) : 580 (Mad) (1B).
9
placed reliance on scientific tests including DNA profiling for human identification and accordingly
closed the matter.51
The Bombay High Court in Anmolsingh Swarnsingh Jabbal v. The State of Maharastra, upheld life
term, relying upon DNA evidence, in addition to other evidences, for murder of a young lady engineer
by her colleague in a case of one sided love52.
In another case of brutal rape and unnatural sexual act with a four year old girl child living in a slum
dwelling was investigated by Delhi police and DNA profiling was used to link the perpetrator with
the ghastly act of sexual violence. The court after having examined the detailed analysis of the child’s
testimony and various methodologies involved therein approved the investigation findings based upon
DNA reports and other evidences and held the accused guilty and set aside acquittal order passed by
the trial court53.
In another case, the use of DNA technology paved the way to prosecute and convict the culprit to death,
liable for kidnapping and killing after gang rape of a 10 year old school girl by auto rickshaw driver and
throwing the corpse of the victim in a running canal54.
Importance of Forensic Science in Law

The word “forensic” has its roots in the Latin word “forenses” which means a forum. Back in early
Rome, a forum referred to a public place where judicial proceedings and debates were held. Thus, the
origin and the very definition of ‘forensic science’ points to its close association with the legal system.
Forensic Science involves the collection, preservation, and analysis of evidence suitable for prosecuting
an offender in the court of law. The application of forensic science in the criminal justice system is,
therefore, an apparent picture.55
The legal system widely recognizes the role of forensic evidence in the trial of criminal offenders. This
is because when scientific techniques and methods are used, there is not much scope for bias or
injustice. That is why DNA profiling and a host of other forensic evidence are widely accepted in courts
across the world. Interestingly, the first forensic technique ever used involving finger and palm print
identification dates back to the Chinese (650 A.D.). Forensic evidence is extensively used worldwide
to both convict and exonerate defendants. Thus, forensic science laboratories have mushroomed up all
over the globe in the past couple of decades. In fact, special acts have been enacted in the US, Canada,
and Australia to improve the rendering of forensic services. This would ensure that crimes are detected
with greater certainty and consequently conviction rates can increase. Such acts place a great emphasis
on time-efficient and quality management of crime scene56.
Conclusion
In Indian scenario, there has been increased emphasis on the use of such technologies in criminal
investigation and trials. The Commissions appointed on reforms of criminal justice have reiterated that
the infusion of technology in crime detection can help the system to function efficiently. The relevant
51
Inspector of Police v. John David (2011) 5 SCC 509
52 2014 SCC Online Bom 397 : 2014 (2) Bom CR (Cri) 361 : MANU/MH/0352/2014
53
State of NCT Delhi v. Sujeet Kumar, 2014 SCC Online Del 1952
54
State by the Inspector of Police v. Manoharan, 2015 Cri. LJ 1215 : MANU/TN/ 0496/2014.
55
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4581010/
56
https://ifflab.org/the-importance-of-forensic-science-in-criminal-investigations-and-justice/
10
laws have been amended from time to time to make way for use of forensic technologies in crime
investigation and trial. Yet, it may be said that there are existent flaws in the laws which need to be
addressed. The courts are also reluctant to rely on scientific evidence due to their restrictive approach,
or certain inherent defects in the evidence as produced in courts which deter them from relying on it
entirely. The main motto of criminal justice system is to provide fair justice. Undoubtedly, forensic
evidence is more authentic than ocular evidence. Forensic science being scientific evidence is a boon
for criminal justice system. We have to overcome the existing flaws to step forward.
We must learn from the past, disrupt our thinking, strengthen the community and change our culture.
This means working together towards a resolution of the scientific deficiencies within existing forensic
evidence while providing a firm basis for new innovative technologies entering into the forensic science
ecosystem. At the same time, we need to ensure that the law enforcement and investigative communities
once again recognize and use forensic science to its full potential as a holistic problem-solving tool (for
example, through the use of the case assessment and interpretation methodology) 57. That such a
methodology is embedded within a framework which allows for an understanding of the contribution
that a specific evidence type could meaningfully deliver in terms of sub-source, source, activity or
offence-level propositions for a given set of case specific circumstances rather than restricting it to a
siloed one-dimensional reactive process becomes obvious. A contextualized means of evaluative
reporting of forensic science data pertinent to a particular case but held in the context of that case where
alternative propositions can be attended to and challenged correctly, works to fulfil this problem-solving
potential. Such an approach has been suggested by the Association of Forensic Science Providers
among others.58
57
A model for case assessment and interpretation. Cook R, Evett IW, Jackson G, Jones PJ, Lambert JA Sci Justice. 1998 Jul-
Sep; 38(3):151-6.
58
Standards for the formulation of evaluative forensic science expert opinion. Association of Forensic Science Providers. Sci
Justice. 2009 Sep; 49(3):161-4.
11
Gender Biased legislations under health laws with reference to the Medical
Termination of Pregnancy act, 1971 and MTP Rules, 1975.
Katiyani Juneja59
Gender based laws aim at upliftment of the female gender, but it definitely does not mean that these laws
should curb the prospects of the opposite sex. The primary objective of these laws is to secure women
from any inhuman treatment, cruelty or injustice which they are often subjected to and ultimately to punish
the wrongdoer. And if we hear some violence is done against men, especially when the accused is a
woman, it is being depicted as humorous, in the media and elsewhere. They are humiliated if they are
sensitive and emotional. Gender neutrality is the basic canon of various Criminal Legislations in India,
one can see many discriminations based on gender in provisions of The Medical Termination of
Pregnancy Act, 1971 and MTP RULES, 1975. The law requires only the woman’s consent i.e. if a man's
pregnant partner seeks to have an abortion, the father's consent isn't legally required although the father
is to be responsible for child support payments. This prevailing misandry is being discussed in the research
paper.
1. Introduction
Assuming that we belong to a male dominant society, we just believe that men are always the culprits for
every crime done against a woman. Whenever we hear about any crime, cruelty, mistreatment or any
sexual offence done against woman we take this note it might be done by a man. Though gender-based
laws aim at upliftment of the female gender, but it definitely does not mean that these laws should curb
the prospects of the opposite sex. The primary objective of such laws is to secure women from any
inhuman treatment, cruelty or injustice which they are often subjected to and ultimately to punish the
wrongdoer. And if we hear some violence is done against men, especially when the accused is a woman,
it is being depicted as humorous, in the media and elsewhere. They are humiliated if they are sensitive
and emotional.
Health is a crucial determinant of the quality of life and the productivity of the vast human resource in
India. The improvement of health has far too long been considered a preserve of the medical profession.
Law and health are both meant for society and social welfare. Moreover, in spite of the high-tech advances
in medical science, the determinants of heath are basically social.60 It is essential for all citizens to be
aware about legal system and basic laws since violation of laws invites punishment. Ignorance is no
excuse to absolve an individual of violation of any laws.
During the past three decades, there has been liberalization of abortion laws throughout the world. While
discussing about abortion, quite often the focus is on the rights of a mother or unborn child, but it is
absolutely forgotten that the family planning decisions also involves the father's rights too. An expectant
father might oppose the pregnant mother's decision to abort the pregnancy. Conversely, he may not wish
to become a father and oppose carrying a pregnancy. In both cases, the father's rights are often seen as
secondary to the mother's. thus there is a need for a stronger paternal role in family planning.
2. Gender-based or Gender-biased?
Gender based violence can be described that violence which is inflicted against a woman simply because
of the reason that she is a woman. Women as a class, unhappily, occupy an inferior and subordinate
position in the society.61 The Charter of United Nations lays down that one of of its basic aims of its
foundation is to secure and “…reaffirm faith in fundamental human rights, in dignity and worth of the
59
Research Scholar and Asst. Prof of Law. Department of Laws, Guru Nanak Dev University, Amritsar.
60
M.C. Gupta, Health and Law 9 (Kanishka Publishers, Distributors, New Delhi, 2002)
61
Usha Tandon, “Gender based violence and Female Foeticide,” in Gender Justice: A reality or Fragile Myth 230 (Regal
Publications, New Delhi, 2015)
12
human person, in the equal rights of men and women and of nations large and small…”62 yet again, the
Universal Declaration of Human Rights proclaims that “all human beings are born free and equal in
dignity and rights..” 63 The Convention on the Elimination of All Forms of Discrimination against Women
(1979) (CEDAW) obligates the states to embody the principle of equality of men and women in their
national constitutions or other appropriate legislations..64 The Constitution of India guarantees to all
persons equality before the law and equal protection of laws to all persons.65 Thus keeping in mind the
gender-based Violence, various women empowering laws regarding dowry, rape, adultery, cruelty, sexual
harassment, divorce and domestic violence were made to provide safety and development to female
population, which are now being misused to penalize the innocent male population. The fight for justice
by females or the cry of gender equality should not be treated as if it is a fight against men. Thus these
laws framed to curb gender-based violence should not become gender-biased.
Looking at this through Feminist ideology, as it interposes a model for understanding the root cause of
this violence. It focuses on the concept of patriarchy as the underlying cause of men’s violence towards
women. This view has dominated research and policy making to such a higher degree. Women were
viewed as the property of men. From this perspective, the societal structure is designed to condone,
perhaps encourage, and perpetuate the ordination of men over women. If a harassed man seeks help; the
majority of society will see it as a laughable situation. Society chooses not to believe the man. This creates
the feeling of guilt and shame for the male. Society’s view on violence has been reinforced by the media
coverage of the issues surrounding domestic violence, rape laws, and maintenance laws etc. portraying
females as the only victims and males as the abusers. Though they are being misused by unscrupulous
women to extort money and harass their husband's and his entire extended family, male friends and many
others. Thus the nature of these gender biased laws needs to be highlighted and hereby this paper provides
information about how to fight against the ‘gender discrimination’ and to save innocent families from this
law which has been termed as 'legal terrorism' by Honourable Supreme Court of India. It was held that
the provisions of such gender based laws is intended to be used a shield and not an assassin’s weapon.66
There are disastrous results of these badly formulated and gender biased law as it has grossly violated the
liberty and dignity of an average man and his family members. This prevailing misandry in the society
should be focused upon. But also on the other hand this is quite certain that there is something really
oblique about a law, when it intimidates and instills fear in innocent people. Thus when a person who has
not committed any crime, begins to fear a punishment under the provisions of a law, it is not a law anyway
rather it is more of a state of sponsored terrorism.
3. Gender Bias Provisions related to The Medical Termination of Pregnancy Act, 1971 and MTP
Rules, 1975
Abortion in a obstetric parlance means the premature expulsion of the product of conception, before
twenty-eight weeks of pregnancy (the period after which the foetus is considered viable).67 Various
countries allow abortion on justified grounds which generally relate to physical and mental health of
women as well as the health of the foetus itself. India, abortions were exclusively by the Indian Penal
Code (IPC) and the Code of Criminal Procedure. It was considered a crime except when performed to
save the life of a pregnant woman. The purpose of making abortion an offence under IPC was that it
62
Charter of the United Nations, 1945, Preamble.
63
UN, Declaration of Human Rights, 1948, art. 2.
64
UN Conventional on Elimination of All Forms of Violence against Women, 1979, art. 2.
65
The Constitution of India, 1950, art. 14.
66
Sushil Kumar Sharma v. Union of India and Ors., Writ Petition (civil) 141 of 2005.
67
S. Chandrashekhar, Abortion in a Crowded World:Problem of Abortion with Special Reference to India 21 (HarperCollins
Publishers Ltd., Noida. 1974).
13
involved the performance of an operation dangerous to the life of the mother.68 The MTP Act was passed
in 1971 and came into force from April 1972 except in J & K where it came into effect from Nov 1976.
The MTP Act is a health care measure which helps to reduce maternal morbidity and mortality resulting
from illegal abortions. It also affords an opportunity for motivating such women to adopt some form of
contraception. The Main aspects of the MTP Act 1971 are:
I. The conditions under which medical termination of pregnancy (MTP) is permissible.
(i) MTP can be carried out in case of contraceptive failure, rape, threat to the mother's life and
congenital anomalies.
(ii) MTP can only be conducted at approved hospitals i.e., Government hospitals and other
hospitals and centres specifically approved by the authorities after ensuring availability of
essential surgical facilities.
(iii) MTP can only be performed by doctors trained for the purpose and by post-graduates in
gynaecology and obstetrics.
(iv) Certification approval is needed by one doctor when pregnancy is below 12 weeks and by
two doctors when between 12 to 20 weeks. Beyond 20 weeks, no termination is permissible.
(v) Written approval of the lady or the guardian in case of a minor is to be obtained before
carrying out the MTP.
II. The conditions under which a pregnancy can be terminated written consent of the woman is a pre-
requisite for performing an abortion. In case of women under 18 years of age, written consent
will be obtained from the guardian. In case of lunatics, guardian's consent is obligatory
irrespective of the age. Other conditions are:
(i) Medical, where continuation of pregnancy might endanger the mother's life or cause grave
injury to her physical or mental health.
(ii) Eugenic, where there is substantial risk of the child being born with serious handicaps due to
physical or mental abnormalities.
(iii) Humanitarian, where the pregnancy is the result of rape.
(iv) Socio-Economic, where actual or reasonably foreseeable environments (whether social/
economic) could lead to risk of injury to the health of the mother.
(v) Failure of Contraceptive Devices, this constitutes grave mental injury to the health of the
mother. This condition is a unique feature of the Indian law and virtually allows abortion on
request, in view of the difficulty of proving that a pregnancy was not caused by failure of
contraception.
III. The person or persons who can perform such termination. Any registered medical practitioner
who has a post-graduate degree or diploma in Obstetrics and Gynaecology is permitted to
perform an MTP Other medical practitioners registered under the IMC Act on or after the
commencement of the Act are permitted to perform MTP only under any one of the following
conditions, Rule 3 :
(i) On completion of six months of House Surgeon-ship in Gynaecology and obstetrics
(ii) In cases where House Surgeon-ship has not been done, the person must have at least
one year's experience in Gynaecology and Obstetrics in a hospital.
(iii) Experience of assisting a registered medical practitioner in performance of a minimum
of 25 cases of MTP in a Government approved hospital or a training institute.
(iv) In case of pregnancy of less than 12 weeks duration, one medical practitioner may
perform the MTP In case of pregnancies between 12 and 20 weeks duration, at least
two medical practitioners are required to perform the MTP except in case of a life
threatening situation. No MTP will be performed beyond 20 weeks duration of
pregnancy.
IV. The places where such terminations can be performed- Section 4
68
H.S Gaur, The Penal Law of India, 2569 (Delhi Law House, Delhi, 1972)
14
(i) A government hospital
(ii) Centres specifically approved by health authorities after verification of necessary surgical
facilities. The conditions to be fulfilled before such approval is granted are laid down in Rule
4.
As abortion has been treated statutorily as a personal matter; these services are provided in strict
confidence after obtaining written consent.
The consent of the woman undergoing the medical termination has to be recorded, which is provided
under MTP Rules.69 This consent has to be obtained prior to the procedure being conducted. It must be
noted that the law requires only the woman’s consent and not the any other person’s consent, including
the spouse.70 Thus, if a man's pregnant partner seeks to have an abortion, the father's consent isn't legally
required. A woman may choose to terminate a pregnancy against the objections of the father. The legal
reasoning for this is twofold, based on a woman's right to privacy in her medical decisions, and in the fact
that the mother is more directly affected by pregnancy.
The Supreme Court of United States has found laws requiring a spouse's consent for an abortion to be
unconstitutional. In Planned Parenthood v. Danforth,71 the Court reasoned that, “a husband's refusal to
consent would in effect veto a woman's choice to terminate a pregnancy. While both prospective fathers
and pregnant women have an interest in the decision, when the two disagree, only one partner's position
can prevail.” According to the Court, since the woman actually carries the pregnancy, "the balance weighs
in her favour," preventing the husband from vetoing her choice.
Supreme Court of India hearing an appeal in a divorce case of Ghosh v. Ghosh72 on March 26, 2007
ruled that: "If a husband submits himself for an operation of sterilization without medical reasons and
without the consent or knowledge of his wife and similarly if the wife undergoes vasectomy (tubectomy)
or abortion without medical reason or without the consent or knowledge of her husband, such an act of
the spouse may lead to mental cruelty." The court also held, “that a refusal to have sex with one's spouse
and a unilateral decision to not have a child would also amount to mental cruelty.” Considering the
circumstances of the case, the court granted a divorce. The judgment has serious implications for
reproductive health services in India, because it mandates spousal consent for induced abortion and
sterilization.
The right to reproductive autonomy

The right to make free and informed decisions about health care and medical treatment, including
decisions about one's own fertility and sexuality, is enshrined in Articles 12 and 16 of the Convention on
the Elimination of all Forms of Discrimination Against Women (1978). Autonomy, the right to informed
consent and confidentiality are considered the fundamental ethical principles in providing reproductive
health services. According to the convention, national norms, standards, and regulations should reflect
these principles. Autonomy would also mean that when a mentally competent adult seeks a health service,
there is no need for an authorisation from a third party.
According to recent ethical guidelines in reproductive health research, even use of the term "consent" has
been restricted only to the person who is directly concerned; in circumstances where partners are involved
it is termed a "partner agreement".
India, as a signatory to the International Conference on Population and Development, 1994, has
committed itself to ethical and professional standards in family planning services, including the right to
personal reproductive autonomy and collective gender equality. Indian policies and laws so far seem to
69
Rule 9, MTP Rules.
Indira Jaising, Medical Termination of Pregnancy a user’s guide to the law 29 (Universal Law Publishing Co. Pvt. Ltd.,
70
Delhi, 2004)
71
(1976) US Supreme Court, No.74-1151.
72
Samar Ghosh v. Jaya Ghosh, Appeal (civil) 151 of 2004.
15
reflect this understanding, at least on paper. The National Population Policy, 2000, affirms the right to
voluntary and informed choice in matters related to contraception. With respect to third party
authorization, according to the standards for male and female sterilization published by the ministry of
health and family welfare, government of India, the prior consent of the spouse is not required for
performing sterilization on a woman. Both The Medical Termination Of Pregnancy Act, 1971 (amended
in 2002 and its rules framed in 2003), and the ministry of health and family welfare's guidelines for
medical termination of pregnancy also specifically state that third party consent is not required unless the
woman is a minor or mentally challenged, and both documents stress the need to maintain
confidentiality.73
In the case of Nirav Anupambhai Tarkas v. State of Gujarat,74 Nirav Tarkas tried hard for eight long years
to get his wife prosecuted for her decision to terminate a pregnancy without his consent. However, all
courts dismissed his applications on the ground that the consent of husband was not required for abortion.
Recently, the Gujarat High Court too rejected his plea.
Tarkas came up with peculiar case stating before a magisterial court that when his wife was pregnant, she
along with his in-laws decided to terminate the pregnancy. Though he did not give his consent, they got
the fetus aborted and committed a crime. He demanded prosecution of his wife and four of his in-laws
under section 312 of IPC, which provides for punishment of seven years for voluntarily causing a woman
with child to miscarry. The couple had two kids already, when in 2002, the woman was pregnant for the
third time. She did not want to keep the child and her family pressurized him to permitting an abortion.
By this time, the husband and wife were not on good terms with each other. He did not give his consent,
but his wife approached a couple of doctors in Vadodara, who did not agree for abortion because there
was no consent of the husband. However, the woman went back to her parents' house in Surat, where a
doctor terminated her pregnancy. Unhappy with his wife's gesture, Tarkas approached a magisterial court
and lodged a complaint. The chief judicial magistrate (CJM), Vadodara ordered a court inquiry and asked
police inspector of J P Police station to submit a report within two months. After the probe, police told
the court that no offence was committed. CJM passed an order in 2006 that consent of the husband is not
required for abortion as per Medical Termination of Pregnancy Act. Tarkas moved a session’s court
against this decision, but his plea was turned down in 2007. He moved the high court demanding
prosecution against his wife and in-laws for the alleged crime. Justice M D Shah, who heard the case,
dismissed Tarkas's plea with observation that the lower courts conclusion was true and “the law makes it
mandatory to obtain consent of the pregnant woman in terminating the pregnancy, but the courts did not
find it mandatory to obtain the husband's consent.”75
4. Conclusion
Thus, to conclude the law places much of the decision making power regarding abortion in the hands of
the prospective mother. She may choose to terminate a pregnancy without the consent or notice of the
father. At the same time, a woman may choose to give birth to a child, even if the father would prefer to
remain childless. But the point which is not considered is that after birth, the father may be responsible
for child support payments despite his objections to carrying the pregnancy to term. This has lead father’s
rights to oppose what they see as a double standard in family planning. There is an utter bias towards the
Rights of the prospective fathers.
Hence, if a prospective mother seeks to abort a pregnancy against a father's wishes, there should be a
legislation framed, where the father agrees to pay the costs of pregnancy and obtain full custody after
birth. Similarly, if a father does not wish to be fully responsible for child support, informal child support
agreements between parents could be made a possibility.
73
Rajalakshmi, “Reducing reproductive rights: spousal consent for abortion and sterilization,” in Rajalakshmi, Indian
Journal of Medical Ethics, Vol. 4, No 3 (2007).
74
Special Criminal Application No. 1352 of 2008; Decided in 2011.
75
TNN, “Husband's consent not required for abortion: HC,” Times of India, Newspaper, Oct 7, 2011.
16
The very principle of gender equality is enshrined in the Indian Constitution in its Preamble, Fundamental
Rights, Fundamental Duties and Directive Principles. Everyone should have equal rights and
responsibilities, irrespective of gender. If we really want justice to prevail, if we really want people to
have faith in the law, if we really want to proclaim equality and dignity, if we really want to rise above
our shallow prejudices, if we really want humanity to supersede, we must have gender-neutrality as the
solution.
BIBLIOGRAPHY
BOOKS
1. Gupta, M.C., Health and Law (Kanishka Publishers, Distributors, New Delhi, 2002)
2. Gaur, H.S. The Penal Law of India, (Delhi Law House, Delhi, 1972)
3. Jaising, Indira Medical Termination of Pregnancy a user’s guide to the Law (Universal Law Publishing
Co. Pvt. Ltd., Delhi, 2004)
4. Tandon, Usha “Gender based violence and Female Foeticide,” in Gender Justice: A reality or Fragile
Myth (Regal Publications, New Delhi, 2015)
ARTICLES
1. Chandrashekhar, S. Abortion in a Crowded World:Problem of Abortion with Special Reference to India
(HarperCollins Publishers Ltd., Noida. 1974)
2. Rajalakshmi, “Reducing reproductive rights: spousal consent for abortion and sterilization,” in
Rajalakshmi, Indian Journal of Medical Ethics, Vol. 4, No 3 (2007).
STATUTES
1. Charter of the United Nations, 1945, Preamble.
2. The Constitution of India, 1950.
3. The Medical Termination of Pregnancy Act, 1971.
4. The Medical Termination of Pregnancy Rules, 1975.
5. UN, Declaration of Human Rights, 1948.
6. UN Conventional on Elimination of All Forms of Violence against Women, 1979.
NEWSPAPER
1. Times of India, Newspaper.
17
Toxicity of Amygdalin: A Significant and Emphasizing Facet of Study in

Forensic Toxicology
*Neha Jain, **Dr. J.R. Sethi, **Dr. A.C. Rajvanshi76
Forensic toxicology, a domain of toxicology which deals with the analysis of various types of
poisons encountered in fatality cases. The analysis encompasses large number of household
products, industrial solvents, chemicals, various drug overdose & death cases and also the analysis
of some of the plant poisons. The emerging practices in the medical and health care professions
has reached to an extent that toxic plants or their parts are now being used for the treatment of
numerous diseases. One such plant product is amygdalin; a cyanogenic glycoside present in bitter
almonds and obtained from the apricots kernels, or from the fruit of plum, peach, seeds of apple.
Nowadays, this toxin is used for the treatment of cancer in humans via consumption of a large
number of bitter almonds or the ingestion of seeds or fruits of these toxic plants. The intake of
enormous amount of amygdalin in higher concentration leads to fatality because it gets
metabolised inside the body into benzaldehyde & hydrogen cyanide (an extremely toxic gas) and
which results in death. The cases of amygdalin toxicity therefore should also be carefully dealt in
forensic toxicology domain likewise those of cyanide intoxication. So, the toxicity of amygdalin
is also a significant aspect of study in forensic toxicology and hence must be emphasized implicitly
in the analytical approach. With the help of this paper a review has been carried out to study the
toxic effects of amygdalin in forensic toxicology cases.
Introduction
Forensic toxicology deals with the detection, identification and analysis of a wide range of poisons
which includes drugs, various chemicals, household products & pesticides along with numerous
plant poisons. A large number of plants are toxic in nature due to the presence of varied toxins in
them. One such plant poison is amygdalin; a naturally occurring cyanogenic glycoside present in
the plants of rosaceae family i.e. in apricots, plum, peach, cherry, apple, almonds, pear. [1] The
plants containing these cyanogenic glycosides are consumed either along with their seeds or
without their seeds as some of these plants does not require to process while eating. [2] The
consumption of these glycosides via oral administration route or through ingestion (chewing or
biting) of the pits or seeds or stones of cherries, almonds, or apricots in large quantity is responsible
for death. [1] There exists about 2650 species of plants which contains these cyanogenic
glycosides.[3] Cyanogenic glycosides are generally non-toxic in nature when they are intact but
become toxic when administered via oral route. One such glycoside is amygdalin (D-
mandelonitrile β-D-gentiobioside) which become toxic when certain plant enzymes (β-
glucosidases and α- hydroxynitrile lyases) come in contact with it either due to damage of the plant
tissue or chewing of edible parts of the plants containing this glycoside or when such parts are
macerated. [2, 4] The cyanide content of amygdalin is only 6% but this content varies in different
plants like in moist apricots it ranges from 8.9-409mg/100g, bitter almonds contains469/100g and
peach pits contains 88mg/1100g.[1] The intracellular catabolic intestinal enzyme (β-glucosidase)
causes the glycoside (amygdalin) linkage to break at the carbohydrate moiety which yields
76
LNJN National Institute of Criminology & Forensic Science *Junior Fellow, **Senior Faculty, **Senior Faculty
(Chemistry)
18
cyanohydrin that further release hydrogen cyanide; a highly toxic, colourless and potent gas upon
hydrolysis, having odour similar to bitter almonds. The release of this gas is responsible for the
cyanide poisoning and fatality cases along with the release of an aldehyde (usually benzaldehyde)
or ketone as a hydrolysed product. [3]
This process of enzymatic degradation of amygdalin takes place in the following three steps;
during the first step the amygdalin splits to prunasin and glucose by the enzyme amygdalin lyase.
This is followed by the hydrolysis step in which the prunasin gets hydrolysed to mandelonitrile
and glucose with the action of enzyme prunasin lyase. The final step is the breaking down of the
above formed mandelonitrile to benzaldehyde and the release of hydrogen cyanide by the enzyme
hydroxynitrile lyase. [5]
Amygdalin
Amygdalin alone or along with hydrogen cyanide would result in acute or sub-acute toxicity if its
exposure is not minimised. A large number of health problems are associated with the consumption
of this cyanogenic glycoside in large quantity. The lethal dose for cyanide toxicity ranges between
0.5-3.5 mg/kg of body weight. The small dose of amygdalin intake is responsible for the acute
cyanide toxicity in humans while in large doses the person may suffer from anxiety, nausea,
vomiting, abdominal cramps, dizziness, weakness, mental confusion, convulsions, cardiac arrest,
circulatory and respiratory failure, coma and death in extreme cases. [6, 7]
The toxicity of amygdalin is considered to be fatal due to the release of hydrogen cyanide gas
which in turns cause symptoms similar to cyanide poisoning i.e. latter on hydrolysis leads to the
inhibition of cellular respiration and binds to the cytochrome oxidase which blocks the utilization
of oxygen and results in hypoxia. [8]
These cyanogenic glycosides (specifically amygdalin) are now being used increasingly as an
alternate for therapy of cancer.[9] A large number of studies conducted revealed that amygdalin
exhibits various anti-inflammatory, anti-cancerous, anti-hypertensive biological activities. This
cyanogenic glycoside has been used as a medicine for the treatment of migraine, hypertension,
chronic inflammation, cancer and for other similar reactions. Also, amygdalin is the most
frequently used cyanogenic glycoside in the cancer treatment because of its anti- tumour effects.
[10]
19
Although the consumption of this cyanogenic glycoside is recommended for the treatment of
cancer but the accidental poisoning occurs due to its rapid onset and highly lethal nature. [8]
Ingestion of the 6-10 bitter almonds results in severe poisoning while the consumption of these
almonds in large amount is fatal. [11]
Amygdalin (cyanogenic glycoside) was first isolated in 1830 for the treatment of cancer in Russia
and in 1920 in United States. Later its semi-synthetic form termed as Laetrile is patented from
amygdalin and marketed for the treatment of cancer. [12]
Laetrile is another cyanogenic glycoside 1-mandelonitrile-β-glucuronic acid. Which is similar in
structure with that of amygdalin. The term laetrile is used interchangeably with the related
cyanogenic glycoside amygdalin. Laetrile or amygdalin are same compounds and having same
chemical structures. Laetrile is also marketed as vitamin B17 and also contains cyanide and used
in place of amygdalin for the treatment of cancer. [13, 14]
A large number of cases of amygdalin or laetrile toxicity has been reported all over the world since
1980s. The increased rate of toxicity is due to either accidental consumption of the seeds of certain
fruits or as a means of medication or treatment of cancer.
The toxicity cases of amygdalin would increase in India because of its increased rate of population
living below the poverty line that forces the poor individuals to opt alternate treatment and
therapies cheaper than the surgery for the cancer. [14]
1. Literature Review of Amygdalin Toxicity Cases
The increased use of bitter almonds or cyanogenic fruits containing for the treatment of cancer
leads to an increased consumption of the amygdalin and thereby its toxicity cases. Ample amount
of cases are reported in the past for the poisoning of such a substance.
Toxicity of amygdalin (Laetrile) has been reported since the earlier times as this has been used as
an alternate treatment for the cancer. Two cases of laetrile (amygdalin) toxicity were reported in
the year 1977 dealt with the two persons; a 48-yr-old woman and 46-yr-old man respectively. The
woman suffered from lymphoma & man with a large cell anaplastic carcinoma of the lung which
were treated with the amygdalin ingestion via tablets and injection. The woman exhibited fever,
malaise, headache, severe abdominal cramps, a diffuse macular erythematous rash,
lymphadenopathy and the man presented with progressive neuromuscular weakness of both lower
& upper extremities. In both the persons the toxicity was resolved by discontinuation of the
amygdalin treatment. [15]
The first reported case of amygdalin toxicity in United Sates during 1979 is of a 41-year-old
woman ingested apricot kernels purchased from a health food store and suffered from dyspnoea
after 20 minutes of ingestion. Also symptoms of weakness, hypothermia were shown followed by
comatose. This leads to the metabolic acidosis a frequent sign of in cases of cyanide intoxication.
[16]
The ingestion of amygdalin (Laetrile) proved fatal in 1981 in a case where a 57-yr-old female with
breast carcinoma was treated with amygdalin. The cyanide levels on admission of the patient to
the hospital was found to be 29.0 mcg/dl. The patient was treated with the same during her
treatment in another hospital and improved with the symptomatic therapy. She was discharged
after three days but suddenly admitted to emergency department after twelve days because of
20
shortness of breath and the diagnosis revealed no signs of life. The case was subjected to autopsy
and it was found that cyanide level was 218 mcg/dl indicated death occurred due to cyanide
poisoning (consumption of amygdalin). [17]
The two cases of poisoning in children has been reported in Gaza during the year 1981 due to the
ingestion of apricot kernels and consumption of the sweet made from such kernels. The children
exhibited the signs and symptoms similar to cyanide poisoning after two hours of ingestion. Out
of the eight children who had consumed apricot kernels seven were recovered but one died shortly
after ingestion. Similarly in the second case out of the 16 children who consumed the sweet
prepared from the kernels of apricots thirteen were recovered after showing the same symptoms
(as those were in the first case) after the administration of one-half hour of the sweet but two died
shortly and one died after two hours. [18]
During the year 1982, another case of amygdalin toxicity had come across by the scientists which
involves a 67 year old woman suffered from carcinoma of large bowel but refused for the surgical
treatment and chemotherapy. She herself administered Laetrile (a semi synthetic form of
amygdalin) and also taken bitter almonds for increasing the protein intake and for the treatment of
disease. After the ingestion of four-five bitter almonds (in grinded form) along with water makes
her felt nauseated, light headed, pukished and suffered from abdominal cramps. The intake of the
same in large amounts again makes her felt crampy abdominal pain within 15 minutes of ingestion
and makes the condition critical. Ingestion of cyanide or amygdalin in such higher doses makes
the patient unable to respond to commands and become unconscious. The administration of the
naloxone hydrochloride, sodium thiosulphate and cyanide antidotes made her to respond back to
the verbal commands. [9]
Amygdalin toxicity also leads to neurological complications include peripheral nerve
demyelination, optic neuropathy, deafness, and Parkinson disease. Two cases were reported in
2009 of sub-acute polyneuropathy in the young individuals which were taking their daily herbal
supplements of apricot kernels and peach seeds respectively. The sufferings involved slowed and
progressive sensory loss, mild weakness with the involvement of distal extremities symmetrically
which began after several weeks of ingestion. Moreover burning dysesthesias was also reported
by one. [19]
Intoxication of cyanide by the ingestion of apricot kernels has also been reported in another case
during 2005 – 2009 in Turkey where thirteen patients were exhibited the poisoning of amygdalin.
The patients soon after ingestion were administered to intensive care unit where they were
provided with the necessary treatment for cure. Hypotension in two, coma in two, convulsions in
one and metabolic acidosis were reported in nine patients due to the ingestion of apricot seeds.
Hydroxocobalamin was administered as an antidote for the cyanide treatment in many patients and
they were recovered and discharged after 2-6 days. [20]
Another case of amygdalin toxicity of 2011 dealt with a 28 months old girl showing signs of
sudden unconsciousness and seizure. Investigation revealed that she had consumed approximately
ten apricot seeds and after 15 minutes of ingestion signs of headache, dizziness and
unconsciousness appeared with extremely low blood pressure (92/42 mm Hg). Also her pupils
started dilating and she was not able to breathe spontaneously. Further the analysis of gastric lavage
showed the pieces of apricot seeds and the symptoms of acute cyanide poisoning. Cyanide antidote
21
was provided but the whole blood cyanide level was more than 3mg/L and the case proved to be
fatal. [21]
The case of 2013 refers to the ingestion of about ten bitter almonds by a five years old child has
resulted in consciousness disorders with generalized seizures, meiosis and metabolic acidosis due
to the metabolism of this cyanogenic glycoside (amygdalin) to hydrogen cyanide in the body. The
case also reported that after ingestion of about ten bitter almonds the child had suffered dizziness,
confusion, vomiting since two hours. Also the person was tachypneic, with peripheral oxygen
saturation at 98% and later he became comatose. [11]
In 2017 another case of amygdalin poisoning is reported in which a 67 year old person suffered
from hypoxia due to consumption of apricot kernels extract. The person also showed hypoxic
peripheral pulse oximetric measurement during routine anaesthesia due to the release of hydrogen
cyanide which inhibits the cellular respiration. [22]
The increased use of amygdalin either in pure form (seeds) or in synthetic form (laetrile tablets)
increases the risk and leads to production of adverse effects in the persons who are a frequent
consumer of supplements for the deficiency of vitamin C and vitamin B12. Such patients are at a
wider risk and hence would result in fatality. [14]
The toxicity cases are thereby increases with the increased use of supplements for the treatment of
various diseases like amygdalin an alternate therapy for cancer.
2. Forensic Toxicological Findings

The ingestion of amygdalin a highly toxic glycoside resembles the case of a cyanide poisoning due
to the release of hydrogen cyanide gas (also known as prussic acid) which showed the symptoms
similar to the case of a cyanide poisoning. The case of cyanide poisoning is diagnosed by the smell
of bitter almonds likewise the case of amygdalin toxicity can be done. Usually the absorption of
the cyanide occurs through lungs, gastro-intestinal tract, and skin. The symptoms appeared within
seconds if cyanide is inhaled in gaseous form while it takes few minutes for the signs and
symptoms to be appeared if it is taken through ingestion of its salts. Similarly in the cases of
amygdalin ingestion the symptoms appeared either immediately with the release of hydrogen
cyanide after ingestion or there may be a delay of about 12 hours after ingestion of cyanogenic
glycosides, nitriles, or thiocyanates. The appearance of the symptoms depends on the absorption
time after ingestion, of the gut, solubility of the cyanide-containing compound. [23]
The cyanide concentration of blood in a normal healthy individual is found to be less than 1.1mg/l
but it exceeds in cases of cyanide poisoning and also in amygdalin toxicity and hence greater than
this is considered to be fatal. [24]
The only signs for identification of such a poisoning case is bitter almond smell due to release of
hydrogen cyanide gas. Autopsy of such a poisoning case shows no reliable symptoms of diagnosis.
The symptoms includes pink lividity, oral and per- oral lesions due to corrosive nature of hydrogen
cyanide gas, gastritis, signs of corrosion and deterioration in stomach with haemorrhagic
appearance of mucosa. Along with this microscopic examination of the epithelial mucosa of the
intestine or stomach also exhibits the release of hydrogen cyanide gas inside the body after the
consumption of amygdalin containing seeds or pits. [27]
22
The analysis of amygdalin toxicity case must be carried out not only on the basis of the bitter
almond smell or pink lividity but also on the case history. The analysis must involves cyanide
detection by preliminary test i.e. Prussian blue test followed by confirmation via several
chromatographic techniques and instrumental analysis.
3. Discussion
The toxicity of amygdalin is a significant and emphasizing facet of analysis in forensic toxicology
because the poisoning of this cyanogenic glycoside reveals symptoms similar to that of any
cyanide poisoning case. The case of a cyanide poisoning can be diagnosed by the history given by
relatives, certain features of autopsy examination, hospital reports and toxicological analysis. [25]
The same are the diagnostic measures in the case if amygdalin intoxication. Since the case of
amygdalin toxicity involves the HCN release which is volatile and hence responsible for the
measurements of cyanide concentrations in the post mortem samples erroneously low. So, the only
signs for identification of such a poisoning case is bitter almond smell or hydrogen cyanide gas
smell. [26]
The toxicity of amygdalin by the ingestion of the seeds or pits of the fruits containing cyanogenic
glycoside is a serious and significant aspect to be dealt in the field of forensic toxicology and
medicine as it is associated with cyanide poisoning, a most potent poison that results in fatality.
Irregularity of symptoms or complete absence of smell if diagnosed in any case, must not be
neglected and the case should be analysed significantly.
References
1
Bryson, Peter D. Comprehensive Reviews in Toxicology: For Emergency Clinicians. 3rd ed.,
Francis & Taylor, 1997.
2
. Bolarinwa, Islamiyat F., et al. “Determination of Amygdalin in Apple Seeds, Fresh Apples and
Processed Apple Juices.” Food Chemistry, vol. 170, 2015, pp. 437–442.,
doi:10.1016/j.foodchem.2014.08.083
3
. Haque MR, Bradbury JH. Total cyanide determination of plants and foods using the picrate and
acid hydrolysis methods. Food Chemistry. 2002; 77 (1):107–114
4. Chaouali, Nadia, et al. “Potential Toxic Levels of Cyanide in Almonds (Prunus Amygdalus),
Apricot Kernels (Prunus Armeniaca), and Almond Syrup.” ISRN Toxicology, vol. 2013, 2013, pp.
1–6., doi:10.1155/2013/610648.
5. Haisman, D. R., & Knight, D. J. (1967). The enzymic hydrolysis of amygdalin. Biochemical
Journal, 103, 528-534.
6. Geller, R. J., Barthold, C., Saiers, J.A., & Hall, A.H. (2006). Pediatric cyanide poisoning: causes,
manifestations, management, and unmet needs. Review. Pediatrics, 118, 2146-2158.
7. Ballhom DJ. Cyanogenic glycosides in nuts and seeds. In: Preedy VR, Watson RR, Patel VB,
editors. Nuts & Seeds in Health and Disease Prevention. 1st edition. London, UK: Academic Press
is an imprint of Elsevier; 2011. pp. 129–136.
8. Hodgson, Ernest. “Toxins and Venoms.” Progress in Molecular Biology and Translational
Science Toxicology and Human Environments, 2012, pp. 373–415. doi:10.1016/b978-0-12-
415813-9.00014-3.
9. Albertson, Timothy E., et al. “Cyanide Poisoning after Bitter Almond Ingestion.” Western
Journal of Medicine, vol. 136, no. 1, Feb. 1982, pp. 65–69.,
23
www.researchgate.net/publication/16127289_Cyanide_poisoning_after_bitter_almond_ingestion
.
10. Yan, Jizhong, et al. “Preparative Isolation and Purification of Amygdalin from Prunus
Armeniaca L. with High Recovery by High‐Speed Counter current Chromatography.” Journal of
Liquid Chromatography & Related Technologies, vol. 29, no. 9, 16 Mar. 2006, pp. 1271–1279.,
doi:10.1080/10826070600598985.
11. Mouaffak Y, Zegzouti F, Boutbaoucht M, Najib M, El Adib A G, Sbihi M, Younous S. Cyanide
poisoning after bitter almond ingestion. Ann Trop Med Public Health 2013;6:679-80
12. Hayta, Mehmet, and Mehmet Alpaslan. “Chapter 20 – Apricot Kernel Flour and Its Use in
Maintaining Health.” Egyptian Journal of Medical Human Genetics, Elsevier, 2011,
www.sciencedirect.com/science/article/pii/B9780123808868100200.
13. Combs, Gerald F. “The Vitamins (e-Bok) Av Jr. Gerald F. Combs.” Bokon, Elsevier S&T, 20
Apr. 2012, bokon.se/ebook/the-vitamins_jr-gerald-f-combs-2/.
14. 20. Bhatnagar, Aakriti, et al. “Laetrile: A Wonder Drug or Farce?” International Journal of
Applied Dental Sciences, vol. 3, no. 3, 2017, pp. 42–45.
15. Smith, Frederick P. “Laetrile Toxicity: A Report of Two Cases.” JAMA: The Journal of the
American Medical Association, vol. 238, no. 13, 1977, p. 1361.,
doi:10.1001/jama.1977.03280140039003.
16 Suchard, Jeffrey R, et al. “Acute Cyanide Toxicity Caused by Apricot Kernel
Ingestion.” Annals of Emergency Medicine, vol. 32, no. 6, 1998, pp. 742–744., doi:10.1016/s0196-
0644(98)70077-0.
17. Vogel, Stephen N., et al. “Cyanide Poisoning.” Clinical Toxicology, vol. 18, no. 3, 1981, pp.
367–383., doi: 10.3109/15563658108990043.
18. Lach's, E E., and R. El. Shawa. “Multiple Cases of Cyanide Poisoning by Apricot Kernels in
Children from Gaza.” Pediatrics, vol. 68, no. 1, Jan. 1981, pp. 5–7.,
www.researchgate.net/publication/283945038_Multiple_cases_of_cyanide_poisoning_by_aprico
t_kernels_in_children_from_Gaza.
19 Grogan, Patrick M., and Jonathan S. Katz. “Toxic Neuropathies.” Clinical Neurotoxicology,
2009, pp. 174–187., doi:10.1016/b978-032305260-3.50020-4.
20. Akyildiz, B. N., et al. “Cyanide Poisoning Caused by Ingestion of Apricot Seeds.” Annals of
Tropical Paediatrics, vol. 30, no. 1, 2010, pp. 39–43., doi: 10.1179/146532810x12637745451951.
21. Sahin, Sabiha. “Cyanide Poisoning in a Children Caused by Apricot Seeds.” Journal of Health
and Medical Informatics, vol. 2, no. 1, 2011.
https://www.omicsonline.org/cyanide-poisoning-in-a-children-caused-by-apricot-seeds-2157-
7420.1000106.php?aid=1583.
22. Konstantatos, Alex, et al. “An Unusual Presentation of Chronic Cyanide Toxicity from Self-
Prescribed Apricot Kernel Extract.” BMJ Case Reports, 11 Sept. 2017, doi:10.1136/bcr-2017-
220814.
24
23. “Read ‘Environmental Medicine: Integrating a Missing Element into Medical Education’ at
NAP.edu.” National Academies Press: OpenBook, www.nap.edu/read/4795/chapter/24#317.
24. Alam, Hall H, et al. Toxicology of Cyanides and Cyanogens. Wiley-Blackwell, 2015.
25. Akhgari, Maryam, et al. “Cyanide Poisoning Related Deaths, a Four-Year Experience and
Review of the Literature.” Australian Journal of Forensic Sciences, vol. 48, no. 2, Mar. 2015, pp.
186–194., doi:10.1080/00450618.2015.1045552.
26. Anseeuw K, Delvau N, Burillo-Putze G, De Iaco F, Geldner G, Holmström P, Lambert Y,
Sabbe M. Cyanide poisoning by fire smoke inhalation: a European expert consensus. Eur J
Emerg Med. 2013; 20(1):2–9.
27. S, Yadukul S Venkataraghava. “Fatal Suicidal Case of Cyanide Poisoning- A Case
Report.” Journal of Forensic Toxicology and Pharmacology, vol. 03, no. 03, 2014,
doi:10.4172/2325-9841.1000123.
25
Criminal Poisoning with Neurotoxic fatal exposures & its medicolegal

implications - a case analysis & review.
Dr Vivekanshu Verma77
Medicolegal Importance of neurotoxic poisons in homicides, suicide and accidental poisoning is

that they are fatal and hazardous to vulnerable population of society - especially kids, young males
& females, and to the newly married women. The easy availability of environmental poison
commercially determines the choice of their use in society. The effects are often fatal immediately
after exposure and deprive them of those whom they know and love. We describe few cases of
poisoning reported, to understand the important role of doctors in giving logic and reasoning as
expert opinion expressed for administration of justice in court of law.
Case presentation: In a series of case presentations of fatal poisoning with Neurotoxic fatal
exposures through various modes, the first case was of drinking and driving, resulting in on-spot
death of his girlfriend. In the second case, insecticide poisoning by young married female in
judicial court premises after marital dispute with her husband, presented with unconsciousness.
Third case was related to accidental snakebite after party in farm house presented with pain
abdomen and drowsy disoriented state. In the fourth case, deliberate cocaine intoxication in a kid
by his grandfather leading to abnormal behaviour, abusive, thus was harming self and others. In
the fifth case, Lithium toxicity due to irregular follow-up in an elderly male suffering from manic
depressive psychosis. Sixth case is fatal Alum toxicity in a young minor, resulting in convulsive
seizures. Seventh case is of Excited delirium due to amphetamine abuse in drug addict, arrested
by police, and died later in lockup, due to lack of medical help. Last case was of young unconscious
female suspected to be a case of drug facilitated sexual assault, which was found to be a roadside
trauma after falling unconscious due to severe anaemia.
Case1: We had a case of Alcohol intoxication leading to road traffic accident presented with
altered mental status & death of his girlfriend due to RTA. Young handsome Male of 6 feet 2
inches height, well built & well nourished, in party- wear, brought to emergency at around 1:50
am of weekend night by bystanders in Altered sensorium & agitated state with abusive speech &
uncooperative behavior, getting out of bed & kicking on the attendants. His Face had Bruise over
forehead & Right black eye with swollen nose. CT Face 3D reconstruction : multiple facial bone
fractures are noted on Right side ; maxillary sinus, zygomatic arch involving lateral wall and right
orbit. Serum alcohol level of patient = 195mg/dl (Normal range= 0-10mg/dl). Patient recovered
from alcohol intoxication by supportive management in emergency. Plastic surgery for facial
fractures was done. Due to Drinking and driving, Female Co-passenger crushed to death in this
roadside trauma. If the driver would have avoided driving after drinking in party, he would have
prevented death of his girlfriend.
Case 2: We had case of insecticide poisoning by young married female in judicial court premises
after marital dispute with her husband, presented with unconsciousness in emergency. Patient was
77
Associate consultant, Emergency & Trauma care, Medanta-The Medicity, Gurugram
26
immediately underwent gastric lavage, and recovered after few hours. Patient told later that she
had consumed the insecticide herself, due to mental stress resulting from marital dispute. Patient
tried to threaten her husband by consuming poison, resulting in fatal neurotoxicity, which was
cured by timely medical intervention.
Case 3: A young male was brought after alcohol party in farm house, presented with history of
pain abdomen and drowsy disoriented state. No injury marks were noted. Gastric lavage was done,
but nothing came out. Blood alcohol assay was negative. Patient was intubated and kept on
ventilatory support. Police intimation was done for suspected poisoning in party by any of his
friends, and when police investigated in farm house, found a poisonous snake hiding below his
bed. On knowing about suspected snakebite, we gave its antidote- Antisnake venom, and patient
came out of ventilator within 24 hrs. Later patient told that he has felt some insect bite on his hand
during sleeping just after party, but he ignored it as mosquito bite. We examined his hand, but
could not find any significant bite mark, only a small swelling could be noted. A suspected
homicidal poisoning was found to be accidental snake-bite.
Case 4: Another interesting case of a 12yrs old male kid brought by his parents from nearby village
for sudden onset abnormal behaviour, abusive, thus was harming self and others. On Examination,
patient’s pupils were dilated and reactive, and was restless, anxious, unable to sit, kicking the staff
and doctors. Patient was calmed down and physically restrained, and we asked for any past history,
but nothing significant was found. MRI & EEG Brain showed no significant abnormality. We
conducted urine for toxscreen, which revealed Cocaine intoxication. Police intimation was done,
who enquired all the family members, and patient’s maternal grandfather confessed that he had
deliberately intoxicated the patient, to take revenge from his son-in- law(patient’s father), for some
property dispute in the village. Patient recovered after few days of medical care, and discharged
later.
Case 5: Lithium toxicity in an elderly male suffering from manic depressive psychosis on lithium
therapy. A 58yr old male with bipolar disorder was hospitalised in drowsy lethargic state with
recurrent episodes of convulsive syncope. On examination, patient had fine flapping tremors of
both hands, slurred speech, ataxia, lethargy and confusion. Despite increasing lethargy, patient had
continued to receive his normal dose of lithium, patient was admitted with profound dehydration,
acute renal dysfunction (Urea=169, Creatinine= 4.4) and hyperkalemia(K= 6.9). ECG showed
abnormal T wave with widened QRS pattern. Trop I = 1.03 was critically high, but CPKMB was
normal. Serum Lithium = 2.89mmol/L was critically toxic (therapeutic range= 0.6-1.2mmol/L).
The patient developed acute kidney injury with sepsis, requiring aggressive treatment of urgent
dialysis and discontinuation of lithium.
Case 6: In this case, iatrogenic fatal Alum toxicity in a young minor, in whom Alum was dispensed
by a traditional local quack for curing patient’s prolonged fever, resulting in Alum induced
convulsive seizures, leading to fatal complication of fulminant hepatic failure, in absence of no
specific antidote of Alum, requiring urgent liver transplantation.
Case 7: A 26 yr old male alcoholic and methamphetamine addict is admitted from the ED to the
ICU for extreme agitation, violent outbursts and seizures. He is given low doses of lorazepam (3
mg total IV) and haloperidol (10 mg IM) and his violent and erratic behavior remains un-
controlled. Police are called to remove him from the hospital 2 1/2 hours after admission. He is
taken out in a wheelchair by the police and left in a nearby park without any discharge meds or
27
instructions. There he is found naked 5 hours later, arrested for lewd conduct, and booked into jail
where he is kept in a “restraint chair.” He asks to go to the hospital the following day. The request
is denied and he dies of a seizure in his cell 24 hours later.
Case 8: This case was of young unconscious female suspected to be a case of drug facilitated
sexual assault, which was found unconscious on roadside by roadside attendants, with torn clothes
at few places. Patient was brought in emergency in unconscious state with multiple abrasions all
over the body and on detailed examination bleeding per vaginum was found. Her Hemoglobin =
5.4gm (Normal= 12-14gm). Immediately blood transfusion was started and gynecologist examined
and found no injuries in the genitalia of the patient. Toxic drug screen was negative for opioids,
cocaine, sedatives, hypnotics. Police intimation was done and traced her identity and brought her
family, and found no history of any assault. Patient recovered consciousness later, and disclosed
that she had not consumed any intoxicating drug, neither she had suffered any sexual assault. She
was known case of severe anemia, and had heavy periods, she was coming by city bus and
collapsed while sitting on gate of it, and fell down on road, and suffered the trauma and her clothes
got torn during fall. So it was found to be a roadside trauma after falling unconscious due to severe
anaemia.
Case discussion: Intoxicated persons should not be kept in police custody, but should be admitted
in hospital for observation. Controlling medically unstable behavior is the responsibility of the
physician, not the police. Unconscious patients should be immediately shifted to nearby
emergency for the first aid and further treatment, till the patient recovers consciousness, and police
intimation is a must, to investigate the history and reaching on the diagnosis alongwith medical
investigations. Drinking and Driving is a Hazardous Combination, and should be restricted by
more stringent laws.
Drug facilitated sexual assault (DFSA):- may include the act of using drugs or alcohol to
incapacitate a victim in order to commit nonconsensual sexual acts, defined under Section 375 of
IPC. In addition, perpetrators may take advantage of the vulnerability of a person who has
voluntarily consumed alcohol or other drugs like opioids, ketamine. Ketamine is a psychoactive,
dissociative agent similar to phencyclidine, but has a high abuse potential secondary to its ability
to cause an “out-of-body” experience. Ketamine is odorless and tasteless, so it can be added to
beverages without detection; and it also induces amnesia to event following its intoxication.
Ketamine, notorious for its use as a date rape drug, has finally been included in the stringent
‘schedule X’ of the Drug and Cosmetics Act, 1945 (Amendment Circular for ketamine in 2014) to
curb its sale & purchase. Certain history points should trigger suspicion of their utilization. These
may include amnesia to events despite limited or no intake of mind-altering substances. DFSA is
often reported late or not at all due to amnesia, uncertainty about whether a sexual assault actually
occurred, and fear of repercussions if mind-altering substances were voluntarily consumed.
‘Emergence Reaction’: Bizarre behavior characterized by a confused state, vivid dreaming, and
hallucinations observed during the recovery phase of ketamine use as anesthetic inside operation
theatre. Medicolegal importance of ‘Emergence Reaction with Ketamine’- Since females
emerging from ketamine sedation may have vivid dreams of sexual assault, which has not actually
happened, leading to false allegations, resulting in arrest & interrogation of the male accompany
who was last seen in party with the female. So, doctors giving ketamine sedation to young females
28
should have proper consent before doing any invasive procedure & should keep a female nurse
along with them, as witness for defense.
Doctors write in Medicolegal reports for suspected drug overdose, poisoning and intoxication,
should note:-
• W- Who is victim (Name, Age, gender, address)
• W- Which occupation (spy, college students, banker, policeman, journalist, politician,
lawyer, doctor)
• W- What poison consumed (than call poison control centre)
• W- What quantity consumed (fatal dose)
• W- When consumed (fatal period)
• W- Where in route of poisoning (ingestion/inhalation/injection- Subcutaneous,
intramuscular, intravenous)
• W- Where consumed (place of crime)
• W-What number of victims (mass casualty)
• W- Who gave it (suicidal/ homicidal/ accidental)
• W- Why (intentional, non-intentional, suicidal, homicidal, accidental)
Adequate information by doctors, who are mostly the first independent witnesses in unconscious
victims, helps the police and court in investigation the suspected cases of trauma or toxicology,
which can help in getting timely justice to the victims, and punishment to the culprits.
Conclusion: Neurotoxic poisoning in the presence/absence of associated injuries can result in
devastating outcomes, if left unrecognized and in absence of proper medical care. A high index of
suspicion and early intervention are critical for timely collection of evidence.
Conflict of Interest: Nil.
Ref:-
1. Lewis R. Goldfrank et al. Goldfrank’s Textbook on Toxicologic Emergencies. 10th ed.
Mcgraw-Hill Publishers. 2015
2. Pillay VV. Comprehensive Medical Toxicology 3rd Ed. Paras Publishers. Hyderabad.
2018.
3. Olson, K. R. Poisoning & drug overdose.7th ed. Mcgraw-Hill Publishers. New York. 2018
4. Textbook of Emergency & Trauma Care. Dr Devendra Richhariya; Jaypee Publishers; 1st
Edition, 2018:(7) 63-4.
29
5. Modi’s Medical Jurisprudence & toxicology. 25th Ed. Lexisnexis 2015
Authors of the above Case Series:

1. Dr Rajesh Verma, Associate professor, Forensic Medicine & Toxicology, SMS
Medical College, Jaipur.
2. Dr Devendra Richhariya, Associate Director, Emergency & Trauma care, Medanta-
The Medicity, Gurugram.
30
Investigation of Time since Death by Detective Insects

Mayuri Kumari & Kirti Sharma78
INTRODUCTION
Forensic entomology is the analysis of insect evidence for forensic and legal purposes [1]. Forensic
entomology is a subset of the forensic sciences whereby information and samples of insects and
associated arthropods are gathered and analyzed to help draw conclusions on legal matters from a
crime scene. The origins of this science have been dated as far back as the early 13th century but
incorporation of forensic entomology as an important component to case work was not recognized
until the start of the 20th century the modern practice of forensic entomology encompasses areas
of urban entomology, stored product entomology, and medico-legal entomology. [2] To a lesser
extent, forensic entomologists can also be involved in veterinary entomology, livestock
entomology, entomotoxicology, and human and insect DNA [3]. The most important and most
frequently requested task is the estimation of the minimum time since death [4]. Techniques
devised recently allow experts in the field to collect robust entomological evidence that can provide
vital information in a death investigation, to answer questions concerning movement or storage of
the remains following death, submersion interval, time of decapitation and/or dismemberment,
identification of specific sites of trauma, post-mortem artefacts on the body, use of drugs
(entomotoxicology), linking a suspect to the scene of a crime, sexual molestations and the
identification of suspects [5]. It is also possible to demonstrate the period of neglect of living
humans and animals by examining the insects recovered from infested wounds [4].
Estimating the minimum post-mortem interval

Post-mortem interval (PMI) refers to the time between the death and discovery of a corpse [4].
There are several natural processes associated with decomposition, such as rigor mortis or livor
mortis, that can be used to estimate the PMI [6] ,but many of these are reciprocal functions and
become inaccurate in application very quickly [7]. Furthermore, they are limited to the first 72 h
after death [6]. However, during that 72 h and well beyond, insects can be a very powerful tool for
78
M.Sc. Forensic Science, Executive Editor of Medico-legal Reporter Journal & Research Scholar, Division of
Forensic Science, Galgotias University, Greater Noida.
31
estimating the minimum time since death. Depending on the level of accessibility and
environmental conditions, necrophagous insects will promptly colonize a fresh corpse. Usually the
first taxa to arrive on a body are flies (Diptera), mainly blowflies (Calliphoridae), which can locate
an odor source with great spatial precision and deposit their eggs on a corpse within minutes–hours
of death. Larvae (often called ‘‘maggots’’) hatch from the eggs and feed on the underlying tissues.
As they grow they shed their cuticle twice, a process termed ‘‘ecdysis,’’ to enable further growth.
After each ecdysis (moult) a new larval instar (stage) is formed. When third instar larvae finish
feeding they enter the post-feeding stage, most species migrate away from the body to find shelter,
either within soil or underneath objects e.g. stones or leaves (outdoor crime scenes), or furniture
(indoor crime scenes). Here, they form pupae within a protective outer case, the puparium (the
hardened cuticle of the third instar larva), from which adult flies emerge at the completion of
metamorphosis. Decomposition as a result of insect activity in and on the corpse is a continuous
process that can be measured, allowing accurate minimum PMI estimates to be made up to several
months after death depending on the circumstances [7]. The assumption behind these estimates is
that by calculating the age of developing insects on a body, it is possible to calculate the time of
colonization, which infers a minimum PMI (PMImin) [4]. i.e., the time when insects first colonized
the body, rather than the actual time of death [3]. Because blowflies are usually the first group to
colonize a body, the focus of PMImin estimates is often on them when using entomological
evidence [4]. The rate of development of an insect is mainly governed by temperature and can
differ between even closely related species [8]. The identification of insects is a highly skilled
procedure and should always be conducted by an expert in insect taxonomy. Museums and
universities are generally the best equipped organizations to process insect identifications and
should always be a first point of contact. For detailed identification keys on forensically important
insects see e.g. Zumpt [9], Smith [10] and Szpila [11].
Insects and their association with postmortem changes of the human body
As soon as death occurs, cells start dying and enzymes start digesting the cells inside out in a
process called autolysis. The body starts decomposing. Bacteria present in the gastrointestinal tract
start destroying the soft tissue producing liquids and gases like hydrogen sulphide, carbon dioxide,
methane, ammonia, sulfur dioxide and hydrogen. The volatile molecules called apeneumones
escaping from the decomposing body attract insects. Researchers are able to isolate the volatile
32
chemicals released at different stages of decomposition of the body. The volatile molecules
released during each stage can modify the insect behavior [12]. Based on the studies done by Crag
et al., in 1950 it was found that putrative sulfur-based compounds were responsible for initially
attracting the flies to the decomposing carcass but egg laying or oviposition of the flies are induced
by ammonium-rich compounds present on the carrion [13]. According to Smith (1986) four
categories of insects can be found on decomposing carrion: i) Necrophagous species feeding on
the carrion; ii) Predators and parasites feeding on the necrophagous species: this group also
contains schizophagous species which feed on the body first and which become predaceous on the
later stages; iii) Omnivorous species feeding on the carrion and other arthropods like ants, wasps
and some beetles; iv) Other species like springtails and spiders which use the corpse as an
extension of their environment. The first two groups are found to be more important for the purpose
of forensic entomology. They are mainly from the species of the order Diptera (flies) and
Coleoptera (beetles). The succession waves in which the arthropods colonize the carrion depends
on the state of decomposition of the carrion. [14] Insects mostly involved in the forensic
investigations are true flies or Diptera. The predominant species in this order are Calliphoridae
(blow flies), Sacrophagidae (flesh flies) and Muscidae (house flies). Calliphoridae (blow flies),
Sacrophagidae (flesh flies) may arrive within minutes following death. Muscidae (house flies)
delay colonization until the body reaches bloat stages of decomposition. Calliphoridae adults are
commonly shiny with metallic coloring, often with blue, green, or black thoraxes and abdomen.
Sarcophagidae are medium-sized flies with black and gray longitudinal stripes on the thorax and
checkering on the abdomen. The adult Muscidae are 8-12 mm long. Their thorax is gray, with four
longitudinal dark lines on the back. The whole body is covered with hair-like projections. Usual
areas of oviposition or egg laying are the natural body openings and wounds. When they hatch,
they produce a larva called maggot. They are small peg-shaped organisms with a pair of mouth
hooks on the anterior end for feeding. Maggots grow rapidly passing through the three stages or
instars, reaching the full size. Once the full size is reached feeding stops and they migrate to drier
areas and they begin pupariation (pupa formation). At this stage the outer skin of the maggot
becomes hardened and forms a protective encasement eventually emerging as a fly [15]. According
to the studies done by K. Tullies and M. L Goff on exposed carrion in a tropical rainforest, it was
found that the decomposition process was best divided into five stages on the basis of physical
appearance of carcasses, internal temperatures and characteristic insect populations:
33
i. Fresh stage (Days 1-2): which begins at the moment of death and ends when the bloating of
the carcass is observed. Even though autolysis occurs at this stage gross morphological changes
do not occur at this point. The estimation of the time of death by entomological data after 24
hrs is more accurate than medical examiner's estimation based on the soft tissue examination.
Insects were seen attracted within the first 10 min of death to the carcass but no egg laying
(oviposition) was found during this state. Cellular breakdown occurs during this stage without
morphologic alterations. Even though morphological changes and odors are not obvious to
humans, the chemicals released from the cellular breakdown attracts insects even in this early
stage [12].
ii. Bloated stage (Days 2-7): Putrefaction begins at this stage. Gases produced by the metabolic
activities of anaerobic bacteria cause an inflation of the abdomen and the carcass forming a
balloon-like appearance during the later part. Arthropod activities combined with the
putrefaction processes cause internal temperatures of the carcass to rise. The greatest numbers
of adult Diptera were attracted to the carcasses during this stage. By the fourth day, first- and
early second-instar or larval stages Diptera were present. By the beginning of Day 2, several
predators of Diptera larvae were also recovered from the carcasses.
iii. Decay stage (Days 5-13): Abdominal wall is penetrated, resulting in the deflation of the carcass
and ending the bloated stage, the internal temperature rises to 14 degrees above the ambient
temperature followed by a drop signifying the end of the decay stage. Decaying odors are high
during increased temperatures and drop with a fall in temperature. There is a steady decrease
in the weight of the carcass by 10th day. There is a conversion of carcass biomass to dipteran
larval biomass. The larvae subsequently depart from the carcass to pupate.
iv. Post-decay stage (Days 10-23): The post-decay stage begins when most of the Diptera larvae
leave the carcass, leaving behind bones, cartilage, hair, small portions of tissue, and a large
amount of wet, viscous material known as byproducts of decay (BOD). The BOD is the major
site of arthropod activity during this stage.
v. Remains stage (Days 18-90+): This stage is characterized by bones with little cartilage
remaining and the BOD has dried up. The transition from post-decay to remains stage is
gradual, with declining adult and larval Diptera populations [16].
34
Steps in estimating the postmortem index with insect larvae
The insect larvae present on the dead body can provide evidence for the estimation of PMI up to
one month [14]. Correct species identification is the initial step. Different species differ in their
growth rates and maturation. For estimating the PMI, age of the larvae has to be determined. By
measuring the length or dry weight of the oldest larvae and comparing it with the reference data,
age of the larvae can be estimated. The rate of development of the larvae is dependent on the
surrounding ambient temperatures. Each stage of development has its temperature requirement
hence each species has its own defined number of accumulated degree days or accumulated degree
hours to complete its development. Once the thermal history of the larvae is obtained, it can be
compared with temperatures at the death scene and PMI can be estimated. The first-generation
adult flies can also be used to determine the age. They can be identified by the shriveled wings,
and tiny abdomen with dull grey colour [16]. When insects colonizing the carrion in a particular
area is known, an insect colonizing succession model can also be used to estimate the PMI. [17,18].
Using insect data for determining the site of crime

There are reported differences in the species of insects involved with the decomposing corpse in
different habitats and environments. A careful examination can reveal species variation, as species
associated with one type of habitat present on a corpse is found to be different from those when
the corpse is transported after death.
Conclusion
Forensic entomology is a highly specialized branch of Forensic Science which needs special
equipment and facilities. It is an emerging field in forensic sciences, where the insects feeding on
corpses are studied. It has become an important tool in criminal investigations. In the present
scenario, the role of forensic odontologists is not confined to hard tissue examination alone.
Increased instances of forensic odontologists being involved in criminal investigations, as part of
the forensic team, have necessitated the need for an increase in awareness of emerging sciences
like forensic entomology and its applications in forensics.
35
References
1. Amendt J, Campobasso CP, Gaudry E, Reiter C, LeBlanc HN, Hall MJR. Best practice in
forensic entomology–standards and guidelines. Int J Legal Med. 2007; 121:90–104.
2. Catts and Goff 1992; Amendt et al. 2004, Gennard 2007
3. (Byrd et al. 2010).
4. Catts EP. Problems in estimating the post-mortem interval in death investigations. J Agric
Entomol. 1992; 9: 245–55.
5. Campobasso CP, Introna F. The forensic entomologist in the context of the forensic
pathologist’s role. Forensic Sci Int. 2001; 120:132–9.
6. Campobasso CP, Di Vella G, Introna F. Factor’s affecting decomposition and Diptera
colonization. Forensic Sci Int. 2001; 120: 18–27.
7. Bourel B, Callet B, Hedouni V, Gosset D. Flies eggs: a new method for the estimation of short-
term post-mortem interval? Forensic Sci Int. 2003; 135: 27–34.
8. Richards CS, Crous KL, Villet MH. Models of development for blowfly sister species
Chrysomya chloropyga and Chrysomya putoria. Med Vet Entomol. 2009; 23: 56–61.
9. Zumpt F. Myiasis in man and animals in the old world. London: Butterworths; 1965. pp. xv?
267.
10. Smith KGV. A manual of forensic entomology. London: The Trustees, British Museum; 1986.
p. 1–205.
11. Szpila K. Keys for the identification of third instars of European blowflies (Diptera:
Calliphoridae) of forensically importance. In: Amendt J, Campobasso CP, Goff ML,
Grassberger M, editors. Current concepts in forensic entomology. Dordrecht: Springer; 2010.
p. 109–37.
12. LeBlanc HN, Logan JG. Exploiting Insect Olfaction in Forensic Entomology. In: Amendt J,
Goff ML, Campobasso CP, Grassberger M, editors. Current Concepts in Forensic Entomology.
Netherlands: Springer; 2010. pp. 205–21.
13. Ashworth JR, Wall R. Responses of the sheep blowflies Lucilia sericata and Lxuprina to odour
and the development ofsemiochemical baits. Med Vet Entomol. 1994;8: 303–9.
14. Amendt J, Krettek R, Zehner R. Forensic entomology. Naturwissenschaften. 2004;91: 51–65.
15. Goff ML, Lord WD. Entamotoxicology;a new area of forensic investigation. Amer J foren med
pathol. 1994;15: 51–7.
36
16. Tullis K, Goff M L. Arthropod succession in exposed carrion in a tropical rainforest on O’ahu
Island, Hawai. J. Med. Entomol. 1987;24:332–9.
17. Schoenly K, Reid W. Dynamics of heterotrophic succession in carrion arthropod assemblages:
discrete series or a continuum of change? Oecologia (Berlin) 1987;73:192–202
18. Davies L. Species composition and larval habitats of blowfly (Calliphoridae) populations in
upland areas in England and Wales. Med Vet Entomol. 1990; 4: 61–8.
37
Foots Prints: A Evidence of Locomotive from Juridical Outlook

Manisha Nandan79
Introduction
The use of barefoot impression morphology in its current form by the RCMP had its origins in the
Alan Legere case in 1989 (1). Although extensive research into the individuality (“uniqueness”)
of barefoot impressions was not performed until last decade, barefoot comparisons were presented
in court for many years (2). Establishing a relationship between the accused and crime is of
paramount importance in every crime scene investigation. There are 26 bones, 33 joints (20 of
which are actively articulating) and more than 100 muscles, tendons and ligaments in each human
foot along with considerable variations in its component parts. These variations are reflected in the
degree of contribution of each part to the function of the foot as a whole (3). These variations are
responsible for differences in pressure distribution and weight bearing through gait making each
footprint unique. Forensic podiatry is defined as the application of knowledge regarding the
anatomy and functioning of foot and also of footwear in crime scene investigations and in
administration of justice. ( 4 ). The basic theory behind footwear analysis is that, much like
fingerprints, shoes and tires may leave behind either prints (referred to as “imprints”) or
impressions that can be examined by investigators. The type of evidence left behind depends
largely on the type of surface traveled. For example, a shoe will leave an impression in loose sand,
but on a hard surface like concrete or linoleum, it will leave an imprint. These imprints or
impressions can be compared to a suspect’s shoe or a vehicle’s tire to determine if the shoe or tire
is the same one that left the impression. (5). During the examination of a crime scene or other
location, if footwear evidence is found and collected, examiners can compare these unknown
impressions to known impressions, impressions connected to other crimes and impression
evidence stored in law enforcement databases. To do this, examiners use three main characteristics
to analyze the imprints and impressions: class, individual and wear. Class characteristics result
from the manufacturing process and are divided into general and limited. General class
characteristics include those that are standard for every item of that make and model. Limited
characteristics refer to variations that are unique to a certain mold. For example, two tires of the
79
M.Sc. Forensic Science, Executive Editor of Medico-legal Reporter Journal.
38
same brand, model and size will have identical tread design and dimensions, but may have slight
differences due to imperfections in the molds used during manufacturing. Individual
characteristics are unique aspects of a particular shoe that result from use, not the manufacturing
process. These could be from damage such as a cut, gouge or crack, or a temporary alteration like
a stone or twig stuck in the tread. Wear characteristics result from the natural erosion of the shoe
or tread caused by use. Specific wear characteristics include the wear pattern, the basic position of
tread wear; the wear condition, the amount or depth of the wear; and where extreme, the damage
to or destruction of the tread. For instance, the location and amount of tread loss on a particular
brand and style of shoe will be different for each person wearing the shoe based on how and where
they walk, and the length of time they have owned the shoe (6). As Footwear can be deposited on
almost any surface, from paper to the human body. Prints are divided into three types: visible,
plastic and latent. A visible print is a transfer of material from the shoe or tire to the surface.
This type can be seen by the naked eye without additional aids. For example, bloody shoe prints
left on flooring or tracks left by muddy tires on a driveway. A plastic print is a three-dimensional
impression left on a soft surface. This includes shoe or tire tracks left in sand, mud or snow. A
latent print is one that is not readily visible to the naked eye. This type is created through static
charges between the sole or tread and the surface. Examiners or investigators use powders,
chemicals or alternate light sources to find these prints. Examples include shoeprints detected on
a tile or hardwood floor, window sill, or metal counter, or tire tracks detected on road surfaces,
driveways or sidewalks. (7, 8). Various approaches have been devised to allow footprints to be
objectively measured and identified for comparison purpose. The most commonly used approaches
are the Gunn, Optical centre, and Overlay method. In case of Gunn method Dr. Norman Gunn
produced a system to compare unkown footprints found at a scene of crime with footprint of
suspected preparators of that crime and he developed an objective process to assist with that
comparison (9). Here well recognized identification points of foot are connected with one another
by using a series of measured lines (10). In Optical Center Method A distinct point on the foot
is identified and concentric circles are drawn in its most suitable location. This point is then
isolated and then connected to other recognized regions of the footprint by means of lines. And in
Overlay Method here outline of an identified footprint is drawn and positioned over an unknown
footprint and compared. Features such as crease lines, shapes and positions of toes etc. are matched
(11). Examiners use several methods for collecting footwear evidence depending on the type of
39
impression found. For impressions in soil, snow or other soft surfaces, casting is the most
commonly used collection method. For imprints, examiners generally try to collect the entire
object containing the imprint, such as a whole sheet of paper or cardboard with a shoe print. When
that is not possible, for instance, if the print is on a bank counter, the examiner would use a lifting
technique to transfer the imprint to a medium that can be sent to the laboratory with any evidence
found at a crime scene, shoeprints and tire tracks must be properly documented, collected and
preserved in order to maintain the integrity of the evidence. Impression evidence is easily damaged,
so steps must be taken to avoid damage to the evidence. This includes securing and documenting
the scene prior to collecting any evidence. In the case of impression evidence, general photographs
of the evidence location in relation to the rest of the scene are taken, along with high-resolution
images of the individual imprints or impressions. Examiners may use alternate light sources or
chemical enhancers to capture as much detail as possible, especially with latent imprints. Properly
photographing impressions is crucial. Since there is only a slight difference between different shoe
sizes, if the photographs are not taken at a 90° angle to the impression, then the true size cannot
be produced in order to compare to the actual shoe. Whenever possible, impression evidence is
collected as is and submitted to the laboratory for examination. For shoeprints that cannot be
picked up, various lifting techniques are used to recover the evidence. These include:
• Adhesive lifter - a heavy coating of adhesive lifts the imprint from smooth, non-delicate surfaces
such as tile or hardwood floors, metal counters, etc. It is usually used in conjunction with
fingerprint powders.
• Gelatin lifter - a sheet of rubber with a low-adhesive gelatin layer on one side that can lift prints
from almost any surface, including porous, rough, curved and textured surfaces. It is less tacky
and more flexible than an adhesive lifter, allowing it to pick up a dusty shoeprint on a cardboard
box, for example, but not tear the surface of the box.
• Electrostatic dust-print lifting device - a tool that electrostatically charges particles within dust
or light soil, which are then attracted and bonded to a lifting film. This method is best for collecting
dry or dusty residue impressions on almost any surface, even the skin of a cadaver.
40
Any plastic, or three-dimensional, footwear can be collected by casting. Casting uses a powdered
stone material, such as dental stone, that can be mixed with water and poured into the impression.
When it dries, this method creates a three-dimensional model of the impression. (12).
Imprints and impressions may be further processed to enhance or bring out additional minute
details. For example, a digital enhancement program such as Adobe Photoshop® can be used to
improve the quality of a photographed. Fingerprint powders and chemical stains or dyes can
enhance image color or increase the contrast against the background. This enables lifted or casted
evidence to be photographed or scanned. Ideally, the suspect’s shoes are submitted to the lab along
with the collected evidence. Examiners will use the submitted shoes to make test standards,
impressions of a known source, which can then be compared to the collected evidence. This is
usually done using transparency overlays or side-by-side comparisons (13).
VALIDATION
In footwear impression evidence, the significance of a positive identification can be conveyed

better by “quantification.” The identifying characteristics observed in the questioned impression
and the corresponding characteristics observed on the outsole of the known shoe can be quantified
by using the position, size, and orientation of each identifying characteristic. An association
between a questioned footwear impression and a known shoe, on the other hand, relies on a
combination of the outsole design and the physical size of the outsole. These areas of comparison
are considered “class characteristics,” and the frequency of occurrence of these class
characteristics is based on the number of shoes manufactured in a particular design and size. Often,
class characteristics have been mistakenly regarded as having little or no value. However, any shoe
outsole in a specific size represents a very small portion of all of the shoes manufactured in that
design. Every shoe outsole manufactured from a specific mold exhibits the characteristics of that
mold. Because variations exist from mold to mold, outsoles can be subdivided by molds. These
variations can be observed in various stippling patterns, concentric circles, vertical bars, and the
position of the logo box (Hamm 1989). Although mold characteristics are “class characteristics,”
they should be examined closely during the examination process. If variations in the mold
characteristics are observed, they can be used to eliminate footwear impressions that share the
same general outsole design and physical size (14). During the examination process, the examiner
41
also must consider the amount of wear observed on the outsole of the shoe. Wear can be defined
as the erosion of the design features or design elements on the outsole of the shoe. This erosion
occurs when the outsole of the shoe comes in repeated contact with a particular surface (15).
Cassidy (1980) studied the duplication of wear characteristics and concluded that the more an
article of footwear is worn, the less likely general wear will be duplicated from one shoe to the
next. Cassidy also found that general wear should not be used as a basis for identification but that
the value of the wear becomes greater the more the footwear is worn. Just as design and physical
size are, wear can be used to identify or eliminate a shoe as a potential source of an impression.
For instance, if more wear is observed in a footwear impression than on a known shoe, then that
shoe should be eliminated as the source of that impression, even if the design and physical size
correspond. The value of each individual and accidental characteristic on an outsole depends on
an experienced evaluation of the traits and attributes of that characteristic (16). An area of damage
is examined for shape, size, relative location on the outsole, and any other distinctive
characteristics. All of these traits add to or subtract from the value of an individual characteristic.
For instance, a pin-sized, circular hole would be less valuable than a jagged tear in a tread element.
Because damage is random and unpredictable, the value of each characteristic that may be present
on an outsole is unpredictable. Also, the uncontrollable nature of the size and quality of a crime
scene impression makes the reproduction of any individual characteristic random. Because all of
these factors contribute to the unpredictable nature of the information provided in a crime scene
impression, it is not possible to define a minimum number of characteristics needed to accurately
identify an impression with the source outsole (17).
Conclusion
Barefoot morphology has been used successfully in jurisdictions to exclude or include a suspect
as having been at the scene of a crime. This evidence is based on an evaluation of the shapes and
placement of various weight-bearing parts of the foot. Because footwear impressions are found at
virtually every crime scene, footwear impression evidence often provides an important link
between the suspect and the crime scene. As a significant form of physical evidence, impressions
left behind at the crime scene may provide valuable information on where the crime occurred and
the direction the suspect traveled while committing the crime (18). Although interest in footwear
evidence has increased over the years, many crime scene investigators and crime scene technicians
42
still fail to recognize the importance and value of footwear impressions as physical evidence.
Often, impressions are overlooked, improperly collected, or not collected at all. However, with the
increased awareness of footwear impression evidence, accompanied by continued research and
additional training now being offered on the proper detection, recovery, and collection of footwear
evidence, the analysis of this valuable form of physical evidence will continue to be an integral
part of criminal investigations (19).
REFERENCES
1. R vs Legere. Supreme Court of Canada. Fredericton, New Brunswick, Canada. October
1991.
2. Anonymous. Donald Delbert Kett and William Chester Kett. RCMP Gazette 11:17–20
(1949)
3. Mann RA. Du Vries surgery of the foot. 4th ed. St Louis: CV Mosby Co.1978
4. Kennedy RB. Uniqueness of bare feet and its use as a possible as a possible means of
identification.
5. SWGTREAD. Guide for the collection of footwear and tire impressions in the laboratory,
Journal of Forensic Identification (2005e) 55:778–779
Journal of Forensic Identification (2005e) 55:778–780.
7. SWGTREAD. Guide for the collection of footwear and tire impressions in the field, Journal
of Forensic Identification (2005c) 55:770–773.
8. SWGTREAD. Guide for the detection of footwear and tire impressions in the laboratory,
Journal of Forensic Identification (2005d) 55:774–777.
9. SWGTREAD. Guide for the detection of footwear and tire impressions in the field, Journal
of Forensic Identification (2005b) 55:766–769.
10. Vernon W. Forensic Podiatry: A review. Axis (2009); 1(2):60-70 7.
11. Vernon W. Forensic Podiatry: A review. Axis (2009); 1(2):60-70 7
Journal of Forensic Identification (2005e) 55:778–780.
13. SWGTREAD. Guide for the forensic documentation and photography of footwear and tire
impressions at the crime scene, Journal of Forensic Identification (2006b) 56:794–799.
43
14. Hamm , E. D. The individuality of class characteristics in Converse All-Star footwear,

Journal of Forensic Identification (1989) 39(5):277–292.
15. Schallamach, A. Friction and abrasion of rubber, Wear (1957–1958) 1:384–417.
16. Cassidy, M. J. Footwear Identification. Lightning Powder Company, Salem, Oregon, 1995.
17. SWGTREAD. Scope of work relating to forensic footwear and/or tire tread examiners,
Journal of Forensic Identification (2005a) 55:764–765.
18. Richard JC. Case Law: Ontario Superior Court, R vs Arcuri, Identification Canada 25:18–
20 (2002).
19. SWGTREAD. Standard terminology for expressing conclusions of forensic footwear and
tire impression examinations, Journal of Forensic Identification (2006d) 56:806–808.
44
Medical Negligence: The Dark side of the Noble Profession

Akankhya Kabi80
Patient’s Father-Please save my daughter doctor. You are God to us. Only you can save her.
Please save our only daughter.
After 2 hours…
Doctor-Oh! I am sorry but we couldn’t save her life.
The investigation revealed, the operation was successful but a scissor was left behind in the body
which cut some vital organs of the body which caused the death of the girl.
Can the father ever forgive the doctor? Forget about her father, as a common reader can you
forgive the doctor?
Sorry! That is what generally people say when they do any mistake but imagine in your wildest
dream you come across a situation as above. Does that sorry make any sense? Does that sorry
bring back a life back who was somebody’s daughter, somebody’s sister, somebody’s friend? This
is a clear case of negligence of the doctor. Can the doctor bring back the daughter’s life whose
father regarded him as God to save her life?
What is negligence?
Negligence is the breach of duty caused by the 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.81According to Winfield,82
“Negligence is a tort is the breach of legal duty to take care which results in damage, undesired by
the defendant to the plaintiff.”
80
Student of School of Law,KIIT deemed to be University,1683011@kls.ac.in.
81
By Alderson B. in Blyth v Proprietors of the Birmingham Waterworks (1856).
82
Winfield & Jolowicz, Tort, 12th edition, p. 69.
45
According to Salmond, “Negligence is the breach of the duty to take care. It’s carelessness in the
matter in which carefully consists a person and in the mental attitude of undue influence with
respect in one’s conduct. Wherever a person is under a duty to take care of that is bound according
to yo the duty of performance.”
Three essential ingredients to prove negligence would be:
1. A legal duty to exercise due care on the part of the party complaining about the former’s
conduct within the scope of duty
2. Breach of duty-There should be a breach of duty which should lead to the damage that is
complained off.
3. Consequential Damage-The damage must be consequential damage and should not arise out
of occurrence of some other events or accidents.
As it can be observed that due care is a very essential ingredient for proving negligence. The
requirements to showcase due care are:
1) Forceability of harm-The harm should be forceable or predictable. It should not be out of

human control. It should not be something which a reasonably prudent man cannot foresee or
would not expect to happen. For example,Shyam is playing cricket in the ground and suddenly
he hits the ball so hard that it rolls down a street and Manish who was driving a cycle hit me
as a result of which he hit a small child on the road for which he was now to pay the damages.
This harm was not foreseeable. A common prudent man cannot see up to such extent that this
is going to happen as a result of the which immunizes Shyam from being tortiously liable.
2) Proximity of Relationship-There should be a proximate relationship between the person who

owns a duty and towards whom he owns a duty.For example,if a child goes away outside the
gate of the school during the school hours,a passerby there,even if he sees him owes no duty
46
in law to rescue the child but the school personals do owe a duty and responsibility in this
regard.
3) It is reasonable that duty should exist-Even though sometimes on pen and paper a duty does
not exist but sometimes the situation is as such that believing that a duty exists is quite
reasonable.
4) Policy considerations do not negate the existence of a duty-Different policies and terms and
conditions do not release you from being liable for the negligence if yours in performing a
duty.
5) Conduct which is negligent with respect to one may not be so with reference to another-
Suppose you are carefully driving a car as like a prudent man but in two different situations
where in one case a child crosses the road and in another an adult crosses the road,the duty to
take care varies.It is more in case of the child whereas less in case of the adult person.
6) Duty must be towards plaintiff-This duty must be towards the plaintiff as the plaintiff is the
one who will be claiming the damages from the defendant.
7) Duty must be in respect of particular conduct complained of-The duty must be in respect of
that particular conduct and not any other conduct which is complained off.
If there is an absence of due care the following should be looked upon:
1. The degree of care required varies with the degree of likelihood of harm. For example, we are
driving and suddenly a man comes in front crossing the road,in this case if the man is a blind
person automatically there is a greater duty to take care as a driver which is comparatively
less in case he is a common man with eyes which will be definitely looked upon by a man of
prudence.
2. In matters requiring particular/special skill, the degree is higher. The test is whether the
defendant has done all that any skillful person would be reasonably be required to do in such
a case.
47
3. There is no duty to take care of where the likelihood of the injury is not reasonably foreseen.
4. For an act to be negligent there must not only a reasonable probability of the happening of the
event complained of but also the injury being caused by it.
Res Ipsa Loquitor
Res Ipsa Loquitor basically means that merely because a prima facie event has occurred, it is
sufficient to indicate negligence. The cases where res ipsa loquitor can be invoked are;
1. The event which caused the accident must have resulted in the control of the defendant
2. The mere occurrence of the event must raise itself a reasonable interference that the defendant
or his servant or agent has been negligent.
3. An absence of any explanation for how the accident occurred by the event.
The severity of the case is higher in these cases because from the very facts of the case a prudent
man can get assured that negligence was there. One of the landmark cases in this regard is Aparna
Dutta v. Apollo Hospitals Enterprises83.In this case, a cloth piece was negligently left during a
major surgery in the abdomen of the patient. From every fact of the case, we can know that this is
a clear case of negligence because no prudent doctor or surgeon taking reasonable care would
leave a piece of cloth in the abdomen of the patient. The surgeon here was made tortiously liable
for which the patient had to suffer severe pain and agony because of such negligent activity.
What is Medical Negligence?
As it is commonplace that negligence is an act recklessly done by someone because of which the
other party to which the first party owes a duty has to suffer a damage. It is basically any
misconduct by a medical practitioner or doctor that can cause an adverse effect on the patient and
might even lead to the death of the patient. This a very genuine and serious concern. Health care
83
A.I.R. 2000 Mad 340(India).
48
services are of the most important sector in the economy which is more often enlarged by the
private sector as compared to Government sector. Researchers have shown that the number of
medical negligence cases is very much higher in number than in Government hospitals. Medical
services are one of the most respectable, honored and noble profession and doctors are believed to
give new life which is no less than being a God for the patients. But its a matter of great shame
that in the name of commercialization the private hospitals have become more a money-making
institution, looting money from the poor people and the health care services provided by the
Government is in even worse condition where the doctors aren’t available many a times as they
also get involved in private practicing whereas they don’t actually perform their duty with honesty
and sincerity for which many of the patients lose their lives. Professional ethics and proper code
of conduct are now limited within the thick medical books and because of some such doctors,
fingers are raised on this noble profession.
A doctor neither extends a guarantee to save the life of the patient nor that he is expected to apply
those medical techniques which are impracticable keeping in mind the limits of technological
development in India because there might be others who have higher education and experience
than him; but the doctor or surgeon undertakes to bring a fair, reasonable, and competent degree
of skill;and in an action against him by a patient.
What are the liabilities of doctors according to different laws?
Medical Negligence is punishable under torts, Indian Penal Code, Consumer Protection Act, Indian
Contracts Act, etc.84 according to the degree of the damage caused because of negligence.
Negligence as a Tort
A tort is a civil wrong. Duties are owed by law in two forms- right in rem and right in personam.
Right in rem refers to the right towards the whole world whereas right in personam refers to right
against a definite person. Tortious liability leads to unliquidated damages. In some cases, there
84
Aakarsh Shah, Medical Negligence, Lawctopus, (Oct. 8, 2017), https://www.rgnul.ac.in/PDF/f7ff0636-9075-
47f2-8e17-a5ba7be7a3cf.pdf.
49
might be more than two liabilities. For example, one can be liable both for tort and contract at the
same time. If a contract between the doctor and the patient, then if the doctor commits any
negligence, he will be liable under the Indian Contract Act,1872.
Negligence under Contract
A contract between two parties with the terms and conditions along with a consideration, if violated
by any party, that party has to pay damages to the other party. A contract may be either expressed
or implied. In the cases of medical and health care facilities, whatever may be in the contract, there
exists a fiduciary relationship between the doctors and the patients i.e a relationship of trust. Even
if there is no expressed contract, the doctors, and medical practitioners are expected to exercise
reasonable care and skill in the treatment of patients, it is an implied duty. Any kind of breach in
the expressed or implied contracts would lead to recurring damages.
Negligence under Consumer Protection Legislation
Different professions have been included in the Consumer Protection laws; medical practitioners
are also within its purview but it is a bit different from the other kinds of negligence. Under
consumer protection laws, it is a kind of deficiency in service.This is often being equated as a
tortious liability but this may lead to stricter and broader liability. Where professionals fail to
exercise skill and care as ordinarily expected from a medical practitioner which is tested under the
consumer protection laws.Here anyone who avails the services of medical facility is treated as
consumers and those who provide it are called the customers.
Doctors play a very important role in the society different from other profession as they are ones
on whom a patient completely relies upon for his treatment which is most valuable to human
beings i.e their health,their lives.It is for this reason that the doctors are supposed to have greater
degree of skill and care, but this also acts as an hindrance in the exercise of their duties.So,laws
50
that impose liability on medical practitioners should accord to have maximum possible care and
caution.
Negligence by professionals
Professionals are those persons who are experts in their own fields because of possession of some
special skill or job either through practice or by degree who are trained to profess in that sphere
either to follow their passion or fulfill their dreams to earn a living and bear certain responsibilities
of the society by professing it with due care.For example
doctors,lawyers,engineers,acting,singing,etc are different professions i.e by professing them one
can earn is bread and butter.
The SC in Jacob Mathew v. State of Punjab held explained that a person professionally is expected
to have certain knowledge and skill before professing that profession and also should take
reasonable care while performing it.A person can be held liable if he is negligent in performing
this duties or do not possess such skills and claims or acts as if they possess and fail to take essential
amount of care as required in that profession.
It is very important to note here that a professional can only be held liable in situations where he
fails to preform skills upto the best of his level and knowledge as compared to other practitioners
in the same field and same level.The skills of all professionals in the same field also differ from
each other and each have their own speciality and uniqueness but their are some basic principles
that everyone in that profession is obliged to follow.For xample,a doctor in USA will have much
more highlybspecialised technologies for the treatment of patients than froma doctor of India for
the same diesease,but there is a basic technique which is required to cure a disease,the doctor in
India should atleast have that before taking uo such a case.In USA it might be faster,in India is
might be slower but the ultimate aim should be saving the life of the patient and not just getting
the patient admitted so that they can earn good money.
Can doctors be brought under criminal Liability?
51
Negligence as a Crime
Failure of negligence as a qualified crime might lead to negative connotation for the society.
Criminalizing it would lead to people being more careful and cautious about the activities without
which people are being very casual, self-centered and everything they measure through money.
Negligence is brought under the purview of torts seeing the nature of the activity that takes place
and is brought under the law of crimes depending upon the degree of the negligence committed.
Courts have made it very clear on the fact that the burden to prove criminal negligence solely lies
on the shoulder on the person claiming it. A guilty mind is a necessary ingredient for criminal law
and a practitioner will be liable if that is proved beyond reasonable doubt in the court of law. At
times under criminal law, rashness and recklessness of a very high degree also amounts to a crime
but proving criminal negligence against medical practitioners is really a tough job. This criminality
that we talk about should not include a guilty mind and negligent act but also the practitioner
having run the risk of doing something with recklessness and indifference which consequently
turns out to be deadly for a patient. The negligence and rashness we talk of here must be ‘gross’
in nature.
It is very difficult to prove criminal liability of doctors. We need to prove both mens rea and actus
reus in case of criminal liability and it is indeed difficult to prove mens rea of doctors.No doctor
would want his patient to die. He tries his best to save his patient but in today’s commercialized
world they are worried about how to treat more and more patients and focus on quantity rather
than quality treatment. Liability can only be brought through negligence but then also negligence
is a tort and medical negligence is also treated under The Consumer Protection Act,1986.
Moreover, a doctor cannot be solely liable for error in judgment when he was not negligent and
took all due care and caution for the patient. This immunity is given to doctors because at last, we
have to accept the fact that the doctors are also human beings and are no God. They can apply their
skills and up to the best of their level but rest all is in the hand of God. For example, in a case, the
chances of survival for the patient is 5% if the operation is not done. The operation is a very risky
one in which the chances of survival of the patient is just 30%. Here the doctor has to take a
decision on whether to operate or not. If the doctor chooses to operate, takes all precautions, fulfills
all formalities, tries his level best in the operation but still fails to save the patient, here a doctor
52
should not be held liable because at last whatever was in his hand, he gave best of his level. Also
bringing criminal liability in such cases can actually be a hindrance for doctors to take chances to
save lives in uncertain situations and cases fearing punishment. But yes, if the case is so that
because of the negligence of a doctor, the patient loses his life or suffers from any other harm
because of such negligence the doctors must be held strictly liable for the same and should be
questioned because at last, they are playing with the precious lives of their patients.
Landmark and Important cases on Medical Negligence
The treatment provided in a nursing home for payment is a service within the meaning of the Act85.
This was held in the landmark judgment of Indian Medical Association v V.P. Shanta86.In this
case, it was held that profession differs from an occupation in the context of performing duties and
giving rise to liabilities due to negligence. It was held that medical service is neither a contract of
employment nor of personal services, rather it is rendering professional services on payment.87In
the case of Jackson and Powell88 professional liability is distinguished by occupational liability
and stated the principle that in the matters of professional liability professions differ from
occupations because professions deal with cases where assurity of success is not 100% and many
a time the probability of success depends upon factors that are beyond the control of human beings.
If we follow a rational approach to determine professional liability which must provide proper
protection to the consumers while the above-mentioned facts are considered, it is the court to
ensure that professional men should possess a certain minimum degree of competence and that
they should take reasonable care in the discharge of their duties. In a profession, a man should owe
his client a duty in tort as well as in contract to exercise reasonable care in giving advice or
performing services.In the case of Achutrao Haribabu Khodwa v. State of Maharastra89 a
mop(towel) was left by the doctor inside a women’s peritoneal cavity while she was operated for
sterilization in a Government hospital which further resulted in peritonitis that lead to death if the
lady.The principle of res ipsa loquitor was applied here and Government was made Vicariously
85
The Consumer Protection Act, 1986
86
1995 6 SCC 651
87
Law of Consumer Protection(Principle and Practice), Avtar Singh, 463
88
Jackson & Powell on Professional Negligence, 3rd Edn., paras 1- 04, 1-05, and 1-56
89
A.I.R. 1996 S.C. 2377
53
liable in this case.90In this case the Supreme Court laid down the following law: “The skill of
medical practitioners differs from doctor to doctor. The very nature of the profession is such that
there may be more than one course of treatment which may be advisable for treating a
patient.Courts would indeed be slow in attributing negligence on the part of the doctor if he has
performed his duties to the best of his ability and with due care and caution. If initially the burden
of negligence is discharge by the plaintiff,it is now upon the hospital and the doctors concerned to
substantiate what they have to justify in their defence and they have to show that there was no
negligence on their part.It should be noted that in these types of cases the burden is more on the
hospitals and doctors than the claimants.91
In Kolkata AMRI hospital case highest compensation of Rs.11.41 crore was awarded to Dr.Kunal
Saha who was a US-based Indian doctor who lost his wife Dr.Anuradha Saha in 1998 due to
medical negligence in the year 1998. This is the highest amount ever paid in a case of medical
negligence because of existence of such severity. Before this case, the highest amount paid was
Rs.1 crore to Prasanta Dhanaka in a case in May 2009.A interesting report was presented in the
year 2005 which showed the increasing number of medical negligence case globally.92
Conclusion
Strictly criminalizing medical negligence would create a sense of fear within the doctors to take
risk of saving a patient in an uncertain case and decriminalizing them encourages medical
practitioners being more negligent of their duties towards the patients. Why just the doctors and
medical practitioners? This ambit should include nurses, compounders, pharmacists and all people
related to this profession as well. This is because a negligent activity of giving an injection in time
which is necessary for the patient also threatens his life. A negligent activity of not providing
adequate help by a compounder or over utilizing his scope of duty would risk the life of the patient.
A wrong medicine or a medicine whose expiry date has already been crossed would also risk the
life of the patient. If you loose money,you can get back but once a patient looses his life you cannot
get that back.We should not risk a life being negligent or in the name if commercialization because
90
Justice G.P.Singh,The Law of Torts, 553 (26 th ed., 2012).
91
Savita Garg v. Director National Heart Institute, A.I.R. 2004 S.C. 5088.
92
Mukesh Yadav,Pooja Rastogi, A Study of Medical Negligence Cases decided By the District Consumer Courts of
Delhi, J Indian Acad Forensic Med. Jan-March 2015, Vol. 37, No. 1, http://medind.nic.in/jal/t15/i1/jalt15i1p50.pdf
54
the life of that patient is also very precious.May not be to us,but it is for his family members,for
the society and the state and risking the life because of our negligent activities is not less than
culpable homicide,is what I strongly believe.Then also you have to equate it by wearing their shoes
as well.They have to take decisions of lives of others.Although they posses some skills and
techniques but this is also true that there is some force above all and the medical cases have some
extra factors as well which is beyond the control of human beings. The decisions that they take not
only affect the life of the patient but also determine the experience and record of the doctor as
well.So,the private hospitals as well as Government hospitals should improve their health care and
services and try to serve their best as this is one of the noblest profession which involves a lot of
trust and optimism in the hospitals,nursing homes and public health care centres.
55
The Role of Human DNA Profiling in the Criminal Justice System: An

Indian Perspective
Rakesh Chandra93
Introduction:
DNA stands for deoxyribonucleic acid, the strands of identity that living beings receive from their
ancestors. Outside of identical twins, no two people have the same DNA pattern. DNA finger
printing also has certain distinctive features.94 DNA fingerprinting was first developed in 1984 by
Alec Jeffreys in the U.K., after Jeffreys discovered that no two people could have the same DNA
sequence. Within three years of the discovery, the U.K. achieved the world's first conviction based
on DNA evidence in a case of rape and murder. Crucially, the evidence also saved the life of an
innocent man who had earlier been charged with the crime.95 In 1989, DNA fingerprinting was
first used in a case by the Kerala Police. By the early 1990s, the technology had begun to be used
for establishing paternity, and to link a criminals and identity victims in sensational crimes. From
the 2000s onwards, the technology became a staple in rape cases where vaginal swab samples were
matched with semen samples from suspects.96
Prior to the use of DNA, identification was heavily based on fingerprints, footprints, blood
or other evidence that a suspect may have left behind after committing a crime. DNA analysis
is an extremely useful and accurate technology in ascertaining the identity of a person from
his/her DNA sample, or establishing biological relationships between individuals. The
process of matching a suspect's DNA with DNA found at a crime scene has provided both law
enforcement agencies and court officials with a higher probability of ascertaining the identity
of offenders.
The uniqueness of DNA fingerprinting as a tool of investigation is not just limited to its
accuracy but extends to the way it can sift through crime scene evidence. Advance DNA
fingerprinting can make separate prints of various individuals even from a sample mixture
93
Research Scholar, Faculty of Law, Lucknow University
94
Human DNA Profiling- Law Commissions of India, Report No. 271, July 2017, Introduction, p.1.
95
Deeptiman Tiwari, What a DNA blueprint can achieve in crimebusting, where India lags still, The Indian Express,
December 12, 2017.
96
Ibid.
56
found at the crime scene- for example, in a gang rape case, DNA fingerprinting can identify
each of the individuals involved in the act through one sample. In such cases, it becomes the
clinching evidence against the accused, and also helps exonerate those whose samples do not
match.97
DNA can typically be extracted from blood and semen stains on clothes or on the body,
from hair and teeth (with roots), and even from bones and flesh if they are not completely
charred. Under the Indian Criminal Justice System, there are broad guidelines on how DNA
samples are to be collected from a crime scene. It is vital to ensure that the DNA of the
investigators does not get mixed with that of the victims or the suspects. Thus, picking up
samples from a crime scene with sterile tools and storing samples in a proper manner are
crucial for the evidence to stand a judicial test.98
Thus, DNA fingerprinting has been very useful for law enforcement, as it has been used to
exonerate the innocent. Unlike blood found at a crime scene, DNA material remains usable
for an endless period of time. DNA technology can be used even on decomposed human
remains to identify the victims.99
DNA profiling technology, which is based on proven scientific principles, 100 has been found
to be very effective for social welfare, particularly, in enabling the Criminal Justice Delivery
System to identify the offenders. Such tests relating to a party would definitely constitute
corroborative evidence.101 Appreciating the use and regulation of DNA based technology in
judicial proceedings, particularly, identification of offences under the Indian Penal Code 1860
and other laws, identification of missing persons and disaster victims apart from its use in
medical sciences; a need has long been felt to have a special legislation to regulate human
97
Deeptiman Tiwari, What a DNA blueprint can achieve in crime busting, where India lags still, The Indian
Express, December 12, 2017
98
Ibid.
99
Human DNA Profiling- Law Commission of India, Report No. 271, July, 2017, Introduction, p.1
100
The DNA test has 99.99% chance of correct conclusions and is perceived as an objective scientific test which
may be difficult for an individual to refute. See: Veeran Vs Veeravarmalle & Anr., AIR 2009 Mad. 64; and
Harjinder Kaur Vs. State of Punjab & Ors., 2013 (2) RCR (Criminal) 146, cited in Law Commission of India's
271th Report, p.2.
101
Simpson Vs. Collinson, (1964), 1 All ER 262, cited in Law Commission of India's 271th Report p.2
57
DNA profiling. DNA analysis offers substantial information which if misused or used
improperly may cause serious harm to individuals and the society as whole.102
With a view to remove the shortcomings in the existing legal provisions, the Department of
Bio-technology came up with a draft Bill titled "The Use and Regulation of DNA- Based
Technology in Civil and Criminal Proceedings, Identification of Missing Persons and Human
Remains Bill, 2016” which was forwarded to the Law Commission of India for examination
and its revision if required. Law Commission of India has come up in its Report No. 271, a
draft Bill- "Human DNA Profiling for the Use and Regulation of DNA- Based Technology"
in July, 2017 which will be presented in the Parliament in the coming monsoon session.
The present paper discusses the various facets of the Human DNA Profiling in India in context
of existing laws and the upcoming legislation.
DNA Profiling and the Indian Legal Framework:
(a) Constitution Of India

As per Article 51A (h) and (j), fundamental duties under our Constitution, a duty is cast upon
every Indian citizen" to develop the scientific temper, humanism and the spirit of inquiry and
reform" and to strive towards excellence in all spheres of individual and collective activity.
Our Parliament is competent to undertake legislations which encourage various technological
and scientific methods to detect crimes, speed up investigation and determine standards in
institutions for higher education and development in technical institutions (Entry 65 & 66 of
the Union List). The other relevant provisions of the Constitution are (i) Article 20 (3) which
guarantees a right against the self-incrimination; and (ii) Article 21 which guarantees
protection of life and liberty of every person.
(b)Indian Evidence Act, 1872:

There are various sections of the Indian Evidence Act which are indicative of legal aspects of
DNA profiling. Section 9 deals with "Facts necessary to explain or introduce relevant facts."
Section 45 is concerned about opinion of third persons or experts, when relevant. Section 51
102
Human DNA Profiling- Law Commission of India, Report No. 271, July 2017, p.2.
58
deals with grounds of opinion, when relevant. Further, Section 112 talks about birth during
marriage as conclusive proof of legitimacy; and Section114 deals with the circumstances
when court may presume existence of certain facts. Section 46 says that facts not otherwise
relevant, are relevant if they support or are inconsistent with the opinion of an expert based
on the DNA profiling is also relevant on the same analogy. However, the issue of conducting
a DNA test remains always a matter of debate.
(c) Criminal Procedure Code, 1973:

Section 53A deals with examination of persons accused of rape by medical practitioner. This
section was inserted by Act 25 of 2005, sec. 8 into the original Act. Sub-section 2 (iv) of this
section 53A stipulates that the registered medical practitioner conducting such examination
(of rape), shall examine without delay the description of material taken from the person of the
accused for DNA Profiling and prepare a report of his examination stating the reasons for each
conclusion arrived at. As per the Explanation appended to Sec. 53, the "examination" shall
include" the use of modern and scientific techniques including DNA profiling”. Further, a
Magistrate is authorized, under Section 311A, to procure any person's specimen signatures or
hand writing.
DNA Profiling: Some Landmark Judgments
In State of Bombay Vs. Kathi Kalu Oghad & Ors.103 an eleven-Judges Bench of the Supreme
Court held that:
“Thus, the giving of finger impressions or of specimen writing or signatures by an accused

person, though it may amount to furnishing evidence in the larger sense, is not included within
the expression 'to be a witness'.
Thus, the Court concluded that giving thumb impressions of foot or palm or fingers or
specimen writings or showing parts of the body by way of identification are not included in
the expression 'to be a witness' as the latter would imply imparting knowledge in respect of
103
AIR 1961 SC 1808.
59
relevant facts by an oral statement or a statement in writing, made or given in Court or

otherwise. The Apex Court's ruling, thus, dealt with the issue of self-incrimination imbibed in
Article 20 (3) which guarantees a right against the self- incrimination under the Constitution.
In an important Judgment, Smt. Selvi & Ors. Vs. State of Karnataka104, the Supreme Court
held that the involuntary administration of certain scientific techniques like narco-analysis,
polygraph examination and Brain Electrical Activation Profile (BEAP) tests and the results
thereof violates the right against self-incrimination. Article 20 (3) aims to prevent the forcible
conveyance of personal knowledge that is relevant to the facts in issue. The results obtained
from each of the impugned tests bear a testimonial character and they cannot be categorized
as material evidence such as bodily substances and other physical objects.
In Ritesh Sinha Vs. State of U.P.105, the Supreme Court held that conducting a Voice
Spectrographic Test without the consent of a person would not violate the mandate of Article
20 (3) of the Constitution.
However, in response to another question raised before the Court regarding absence of
statutory provision or internet power under the provisions of Cr. P.C. regarding directing a
person for such test, there were two divergent views. Hon'ble Justice Aftab Alam, on one hand
held that "on the question of compelling the accused to give voice sample, the law must come
from the legislature and not through the Court process." However, Hon'ble Justice Ranjana
Desai, taking the instance of DNA profiling, observed thus:
"In light of this attempted analogy, we must stress that the DNA profiling technique has been
expressly included among the various forms of medical examination in the amended
explanation to Sections53, 53A and 54 of the Cr. P.C. It must also be clarified that a 'DNA
profile' is different from a DNA sample which can be obtained from bodily substances. A
DNA profile is a record created on the basis of DNA samples made available to forensic
experts. Creating and maintaining DNA profiles of offenders and suspects are useful practices
since newly obtained DNA samples can be readily matched with existing profiles that are
already in the possession of law-enforcement agencies. The matching of DNA samples is
104
AIR 2010 SC 1974.
105
(2013) 2 SCC 357.
60
emerging as a vital tool for linking suspects to specific criminal acts. It may also be recalled
that as per the majority decision in Kathi Kalu Orghad, (State of Bombay Vs. Kathi Kalu
Orghad & Ors. AIR 1961 SC 1808) the use of material samples such as fingerprints for the
purpose of comparison and identification does not amount to a testimonial act for the purpose
of Article 20 (3). Hence, the taking and retention of DNA samples which are in the nature of
physical evidence does not face constitutional hurdles in the Indian context. However, if the
DNA profiling technique in further developed and used for testimonial purposes, then such
uses in the future could face challenges in the judicial domain."
However, the matter is pending consideration before the larger bench due to the difference of
opinion in this bench.
Touching upon the issue of a person's right to privacy, the Supreme Court in Bhabani Prasad
Jena Vs. Convener Secretary, Orissa State Commission for Women,106 whilst pressing upon
the significance of DNA testing in the process of administration of justice held:
"When there is apparent conflict between the right to privacy of a person not to submit himself
forcibly to medical examination and duty of the Court to reach the truth, the Court must
exercise its discretion only after balancing the interests of the parties and on due consideration
whether for a just decision in the matter, DNA test is eminently needed.”
In Krishan Kumar Malik Vs. State of Haryana,107the Supreme Court explained that even in the
absence of Section 53A Cr.P.C., DNA profiling could be permissible under law. The Court
held that:
"Now after the incorporation of Section 53A in Criminal Procedure Code with effect from
23.6.2006….. it has become necessary for the prosecution to go in for DNA test in such type
of cases, facilitating the prosecution to prove its case, against the accused. Prior to 2006, even
without the aforesaid specific provisions in Cr.P.C. the prosecution could have still resorted
to this procedure of getting the DNA test.......... to make it a fool proof case....."
106
AIR 2010 SC 2851.
107
(2011) 7 SCC 130.
61
In Kanti Devi Vs. Poshi Ram,108 dealing with the paternity issue of a child, the Apex Court
held that:
"The result of a genuine DNA test is said to be scientifically accurate. But even that is not
enough to escape from the conclusiveness of section 112 of the Act, e.g. if a husband and wife
were living together during the time of conception but the DNA test revealed that the child
was not born to the husband, the conclusiveness in law would remain unrebuttable. This may
look hard from the point of view of the husband who would be compelled to bear the
fatherhood of a child of which he may be innocent. But even in such a case the law leans in
favour of the innocent child from being bastardised if his mother and her spouse were living
together during the time of conception......."
However, in Nandlal Basudev Badwaik Vs. Lata Nandlal Badwaik109, the Court held that it
would be permissible for the Court to direct the DNA examination to determine the veracity
of the allegation (s) made in a case, depending on the facts and circumstances of the case. If
the direction to hold such a test can be avoided, it should so be avoided.
Bombay High Court, in Ambika Rama Kant Uniyal Vs. Rama Kant Shriram Uniyal, Family
Court Appeal No. 48 of 2012,110 has held that where a wife failed to prove that her second
child was the husband's biological son and also refused to undergo a DNA test, adverse
inference was drawn against her, that the respondent was not biological father of her younger
son. Refusal to undergo DNA test to prove legitimacy of child is a ground for divorce, and the
husband is not legally liable to maintain him (the second child).
The Draft D.N.A. Profiling Bill, 2017:
The first step towards a DNA Profiling Bill was taken in 2007 with the "Draft DNA
Profiling Bill" by the Centre for DNA Fingerprinting and Diagnostics. Since then, there has
been a 2012, 2015, and a 2016 version of the Bill. In 2013, the Department of Biotechnology
formulated an Expert Committee to deliberate on concerns raised about the Bill and finalise
the text. The "Use and Regulation of DNA Based Technology Bill, 2017" and the report by
108
AIR2001 SC 2296.
109
AIR 2014 SC 932.
110
Decided on 18.11.2013.
62
the Law Commission is a further evolution of the legislation and dialogue. The 2017 Bill
contains a number of improvements from previous versions, yet there are still outstanding
concerns that remain.111
Positive changes in the Bill include provisions for consent, defined instances for deletion of
profiles, limitation on purpose of the use of data in the DNA Data Bank, defined instances for
destruction of biological samples, and the ability for an individual to request a re-test of bodily
substances if they believe contamination has occurred.112
Following are some of the salient features of the Bill:113
 Constitution of a DNA Profiling Board, a statutory body to undertake functions such as

laying down procedures and standards to establish DNA laboratories and granting
accreditation to such laboratories; and advising the concerned Ministries/ Departments of the
Central and State Governments on issues relating to DNA laboratories. The Board shall also
be responsible to supervise, monitor, inspect and assess the laboratories. The Board will frame
guidelines for training of the Police and other investigating agencies dealing with DNA related
matters. Advising on all ethical and human rights issues relating to DNA testing in consonance
with international guidelines will be another function of the Board. It will recommend research
and development activities in DNA testing and related issues, etc.
 DNA profiling would be undertaken exclusively for identification of a person and would
not be used to extract any other information.
 There shall be a National DNA Data Bank, and Regional DNA Data Banks for the States,
to be established by the Central Government. The Data Banks will be responsible for storing
DNA profiles received from the accredited laboratories and maintaining certain indices for
various categories of data, like crime scene index, suspects' index, offenders' index, missing
persons' index and unknown deceased persons index.
 With a view to assist the kith and kin of missing persons, provisions have been made for
proper identification of missing persons on the basis of their bodily samples/ substances.
111
Elonnai Hickok, The DNA Profiling Bill has too many loose ends, the Hindustan Times, August 8, 2017
112
Ibid
113
Government of India, Law Commission of India, Report No. 271, Human DNA Profiling- A draft Bill for the
Use and Regulation of DNA-Based Technology July 2017.
63
 Appropriate regulations may be notified by the Board for entry, retention and expunction
of DNA profiles.
 Maintenance of strict confidentiality with regard to keeping of records of DNA profiles
and their use.
 Sharing of DNA profiles with and by foreign Government or Government organisation or
Government institutions or any of its agencies, for the purpose of this Act.
 The violators of the provisions would be liable for punishment of imprisonment, which
may extend upto three years and also fine which may extend upto Rs. 2 lakhs.
 The undertrial may request the trial court for another DNA testing if she/ he satisfies the
court that the previous DNA sample (s)/ bodily substances (s) stood contaminated and hence
could not be relied upon.
 The DNA experts may be specified as Government Scientific Experts and be notified as
such under clause (g) of sub-section (4) of section 293 of Cr. P.C.
Critique of the Bill:
(i) It is concerning that the 2017 Bill has left the defining of privacy and security safeguards
to regulation- including implementation and sufficiency of protection, appropriate use and
dissemination of DNA information, accuracy, security and confidentiality of DNA
information, timely removal and deletion of obsolete or inaccurate DNA information, and
other steps as necessary. Furthermore, through the Law Commissar cites the use of the 13
CODIS (Combined DNA Index System) profiling standard as a means to protecting privacy
in its report- this standard has yet to find its way in the text of the Bill.114
(ii)The implications of creating regional and national level DNA databanks need to be fully
understood and publicly debated. DNA is not foolproof-false matches can take place for
multiple reasons. Importantly, the usefulness of DNA based technology to a legal system and
the impact on individual rights is dependent and reflective of the social, legal, and political
environment the technology is used to.115
(iii) DNA based technology can be a powerful tool for law enforcement, and it is
important that a robust process and structure is given to the collection of DNA samples from
114
Elonnai Hickok, The DNA Profiling Bill has too many loose ends, Hindustan Times, August 8, 2017.
115
Ibid.
64
a crime scene to the laboratory for analysis, to the DNA bank for storage and comparison, but
this structure need also be cognizant of the right of individuals and the potential for misuse of
the technology.116
(iv) It is worrying that in the conclusion of its report, the Law Commission has referred
to whether privacy is an integral part of Article 21 of the Constitution as merely "a matter of
academic debate". Privacy is recognized as a fundamental right in many democratic contexts-
including many of those reviewed by the Law Commission as examples of contexts with DNA
Profiling laws.117
(v) As society continues to rapidly become more and more data centric, and that data
increasingly is a direct extension of the person, it is critical that legislation that is developed
has clear protection of rights. In addition to amendments to the text of the draft 2017 Bill, this
includes enacting a comprehensive privacy legislation in the country.118
(vi) Policy needs to evolve past protections that are limited to process oriented legal
privacy provisions, but instead to protections that are comprehensive accounting for process
and enabling the individual to control and know how her/his data is being used and by whom.
Other countries have recognised this and are taking important steps to empower the individual.
India needs to do the same for its citizens.119
Conclusion: DNA analysis is an extremely useful and accurate technology in ascertaining

the identity of a person from his/ her DNA sample, or establishing biological relationships
between individuals. A hair sample, or even bloodstains from clothes, from a scene of crime,
for example, can be matched with that of a suspect, and it can, in most cases, be conclusively
established whether the DNA in the sample belongs to suspected individual. As a result, DNA
technology is being increasingly relied upon in investigation of crime, identification of
unidentified bodies, or in determining percentage. But information from DNA samples can
reveal not just how a person looks, or what their eye colour or skin colour is, but also more
intrusive information from DNA analysis getting misused. That is why greater caution in
collecting, storing and using a person's genetic data.
116
Ibid
117
Ibid
118
Ibid
119
Ibid.
65
The draft DNA Profiling Bill, 2017 is required to address basic apprehensions of common
citizens like privacy which is now a fundamental right. Comprehensive law on data protection
which is of utmost importance in the light of data theft occurring here and there now is the
need of the hour. The upkeep of data is also very challenging. At present, this is a grey area
which needs the support of latest technological advancements. Moreover, the sampling of
DNA must be resorted to strictly for criminal investigation purpose, identification of natural
calamity victims and the like. It should not be used for other purposes with ulterior motives.
Until and unless, these areas are not covered and proper safeguards be enumerated, the Bill is
not going to serve its purpose to its full extent. Like any other law for that matter, the approach
of the incumbent Bill/ Act must be people-centric. It has also to be ensured that DNA Profiling
is a very useful technology for which a detailed and well-defined Standard Operating
Procedures is absolutely necessary. It would be better if the draft Bill is revised in the light or
the recent Privacy Judgment of the Apex Court and the impending Data Protection Law on
the recommendation of Justice B.N. Srikishna Committee Report. DNA Profiling is capable
of changing the course of criminal justice system by saving the lives of innocent persons. State
must realize it while making a law to regulate its functioning.
Bibliography
 DNA profiling Bill in Monsoon Session, Centre informs SC, Legal Correspondent, The
Hindu, May 02, 2018.
 Hickok, Elonnai, The DNA Profiling Bill has too many loose ends, the Hindustan Times,
August 8, 2017.
 Human DNA Profiling- Law Commission of India, Report No. 271, July, 2017,
Introduction, p.1
 Mandhani, Apoorva, Law Commission Submits Draft Bill For Human DNA Profiling,
Proposes Setting Up Of National And Regional DNA Data Banks, July 26, 2017, available
at http://www.livelaw.in/law-commission-submits-draft-bill-human-dna-profiling-proposes-
setting-national-regional-dna-data-banks-read-report/, accessed on 14.6.2018.
 Rajagopal, Krishna Das, Regulation of DNA profiling, The Hindu, July 28, 2017.
66
 Rajagopal, Krishna Das, The identity puzzle, The DNA Bill seeks to streamline genetic
profiling activities, The Hindu, Oct 27, 2017.
 Tiwari, Deeptiman, What a DNA blueprint can achieve in crime busting, where India lags
still, The Indian Express, December 12, 2017.
 Sinha, Amitabh, Understanding the new DNA tech Bill: All your questions answered ...,
available at Indian Express.com>Explained, accessed on 14.6.2018.
 Vijaykumar, Anupama, What is the debate surrounding India's new DNA-based
technology bill?, available at https://www.newsbytesapp.com/.../India/.../know-all-about-
the-dna-based-technology-..., accessed on 14.6.2018.
67
PART 2: CASES DIGEST

SOME NOTABLE CASES ON MEDICO-LEGAL ISSUES
TABLE OF CONTENTS
S.No. CASE Pg. No:
1 Nikhat Parveeen V. Sana Nursing Home & Ors. 2
2 Dr. Adit Dey V. Shree Durga Charan Shee & Ors. 7
3 Dr. Sutapa Dasgupt & Anr. V. Tapan Kar & Anr. 12
4 Pankaj Arora V. Medical Council Of India 16
5 Susmitha Roy Chowdhury & Anr V. B.M Birla Heart Research Centre & 19
Ors
6 State Of MP And Others V. Samarvati Bai & Anr 25
7 Ramesh (Dead) Through Its Lrs V. Dr. R. N. Savitha & Anr 28
8 Ravikumar And Anr V. Dr. M. Syam Sunder 31
9 Ajay Kumar Chaudhary V. Unknown 34
1
1. NIKHAT PARVEEEN v. SANA NURSING HOME & ORS.
COURT: State Consumer Disputes Redressal Commission, West Bengal, Kolkata.
APPELLANT: Nikhat Parveen
RESPONDENT:
1) Sana Nursing Home

2) Dr. (Mrs.) S. Mehdi
3) Dr. Keya Sengupta
JUDGE NAME:
1) Hon’ble Mr. Justice Ishan Chandra Das, President

2) Hon’ble Mr. Tarapada Gangopadhyay, Member
DATE OF JUDGMENT: 12th May 2017
JUDGMENT IN FAVOUR OF: Nikhat Parveen (Appellant)
SUBJECT MATTER: Compensation on negligence by the doctors while operating a caesarean.
FACTS OF THE CASE:
The Appellant/Complainant was admitted on 30.8.2013 to the Respondent No. 1/OP No. 1-
Nursing Home under Respondent Nos. 2 & 3/OP Nos. 2 & 3-Doctors for delivery of child. On
the same day at 6.09 p.m. a female baby was delivered by ‘LUSCS’, i.e. Caesarean Section, by
the Respondent Nos. 2 & 3/OP Nos. 2 & 3-Doctors with the assistance of others, and the
Appellant/Complainant was discharged on 2.9.2013 as revealed from the ‘Discharge Summary’
dated 2.9.2013 of the Respondent No. 1/OP No. 1-Nursing Home. After such discharge, the
Appellant/Complainant on 9.9.2013 further met the Respondent No. 3/OP No. 3-Doctor as per
advice of the Respondent No. 2/OP No. 2-Doctor with complaint of pain in lower abdomen when
the Respondent No. 3/OP No. 3-Doctor prescribed some medicines and tests, but following the
said advice of the Respondent No. 3/OP No. 3-Doctor when the Appellant/Complainant did not
get any relief in abdominal pain, the Appellant/Complainant met the Respondent No. 2/OP No.
2-Doctor on 17.9.2013 when the Respondent No. 2-Doctor prescribed some additional medicines
and advised the Appellant/Complainant to visit the Respondent No. 3-Doctor in case of necessity
as the Respondent No. 2-Doctor would be out of India for a couple of months.
2
Despite following the advice of the Respondent Nos. 2 & 3-Doctors when the
Appellant/Complainant did not get any relief from abdominal pain, she visited another doctor,
being Dr. Nabanita Javed, at Lap Cure Clinic, who, examining the clinical signs of the
Appellant/ Complainant, advised for USG of the whole abdomen further. Accordingly, the
Appellant/Complainant got the second USG done on 7.10.2013 which reported “A big complex
space occupying lesion at right adnexa - ? Texiloma”. Examining the USG report Dr. Nabanita
Javed did Laprotomy upon the Appellant/Complainant on 10.10.2013 and removed the ‘infected
mop & pus, and toileting done’ as is revealed from the Discharge Summary dated 20.10.2013 of
Lap-Cure Clinic.
After removal of ‘infected’ mop, the Appellant/Complainant sent a letter dated 6.12.2013 to the
Respondents/OPs seeking unconditional apology and refund of money paid for such negligence
on the part of the Respondents/OPs, but the Respondents/OPs did not reply to the said
letter. With this factual matrix the Complainant moved the Complaint concerned before the Ld.
District Forum which passed the order dismissing the Complaint. Dissatisfied with the said
order the Complainant has approached this Commission with the instant Appeal.
STATEMENT OF ISSUES:
1) That the hospital is vicariously liable for the negligence done by its doctors.
2) That the district forum were ignorant about the factum matrix about the case and hence
the present appeal is vehemently maintainable.
3) That the respondents did not performed there duty to care towards its patient and should
be held liable for the compensation towards the appellant for the harassment, mental
agony and surgical expenses suffered by the appellant.
CONTENTIONS BY THE PARTIES:
Appellant:-
1. That the Ld. District Forum passed the order impugned erroneously ignoring the report of
USG dated 7.10.2013 reporting ‘Texiloma’ and the fact of removal of ‘infected mop and
pus’ from the abdomen of the Appellant/Complainant as evident from the Discharge
Summary dated 20.10.2013 by Dr. Nabanita Javed, and that the ‘mop’ was left inside the
abdomen of the Respondent Nos. 2 & 3/OP Nos. 2 & 3-Doctors.
3
2. That the said USG and the findings in the Discharge Summary having not been
contradicted by the Respondent Nos. 2 & 3/OP Nos. 2 & 3-Doctors as ‘false’ and
‘fabricated’.
3. That the aforesaid evidence on records undisputedly points to the gross negligence on the
part of the Respondents/Ops.
4. That the Respondent No. 1/OP No. 1-Nursing Home is also vicariously liable for its
deficiency in service in ensuring proper care and diligence in discharge of duties of the
Doctors who were engaged in the Respondent No. 1-Nursing Home for rendering
services.
5. That in view of the aforesaid submission, the instant Appeal should be allowed, the
impugned order be set aside and the Complaint be restored in the interest of justice.
Respondents:
1. That the Ld. District Forum passed the order impugned properly in view of the failure of
the Appellant/Complainant to adduce any documentary evidence in support of the ‘8cm.
x 6cm. surgical sponge’ inside the abdomen of the Appellant/Complainant (sample
received on 10.10.2013).
2. That histopathological report dated 22.10.2013, as available on records, is also silent
about the ‘mop’ and ‘Texiloma’.
3. That the said case suffers from non-joinder of party, being Dr. N. Javed, who statedly
removed the ‘mop’.
4. That the Appellant/Complainant did not follow up the case as per advice of the doctors
concerned and hence, there is contributory negligence on the part of the
Appellant/Complainant.
5. That in view of the aforesaid submission, the instant Appeal should be dismissed and the
impugned order be sustained.
JUDGMENT:
The aforesaid discussion clearly establishes the medical negligence as well as the deficiency in
service on the part of the Respondent Nos. 2 & 3/OP Nos. 2-Doctors and hence, the Respondent
Nos. 2 & 3/OP Nos. 2 & 3-Doctors cannot escape their liability. In this context, reliance was
4
placed on a decision of the Hon’ble National Commission in K. RavindraNath (Dr) &Anr. Vs.
VittaVeena Surya Prakasham&Ors., reported in IV 2006 CPJ 105 (NC).
The Respondent No. 1/OP No. 1-Nursing Home also couldn’t escape its vicarious liability for the
deficiency in service on the part of the Respondent Nos. 2 & 3/OP Nos. 2 & 3-Doctors who were
engaged in duties with the Respondent No. 1/OP No. 1-Nursing Home as was held by the
Hon’ble Supreme Court in Smt. Savita Garg Vs. The Director, National Heart Institute (supra).
Consequently, the instant Appeal was allowed with cost of Rs. 10,000/- to be paid by the
Respondents/OPs to the Appellant/Complainant. The Respondent Nos. 2 & 3/OP Nos. 2 & 3-
Doctors are directed to pay to the Appellant/Complainant Rs. 4,00,000/- each as compensation
for second-time surgical expenses, harassment and mental agony and the Respondent No. 1/OP
No. 1-Nursing Home was also directed to pay Rs. 50,000/- to the Appellant/Complainant as
compensation within 45 days from the date of the order, failing which interest @ 6% per annum
shall accrue on the entire amount involved for the entire period of default.
CONCLUSION:
Basically, in the present case, the appellant was a patient at respondent’s hospital who conducted
a caesarean delivery on the patient. Fortunately, the upcoming negligence of the doctors and the
respondents herein mentioned above, was not effected on the new born baby. But the mother, i.e.
the appellant of the present case became a victim of it. The doctors in the present case left a mop
which created a pus in the lower abdomen of the appellant because of which she suffered a lot of
pain and ill health. What if she wouldn’t have approached another doctor? She would have died.
Because the respondents who call themselves ‘doctors’were negligent on every stage of its duty
as a doctor. The first and the foremost duty of a doctor is to conduct a clean and careful surgery
because they were handling a life. And in the present case, they were handling two lives. It was
merely a fate that the appellant was saved from such vehement behaviour of the doctors. After
the delivery the appellant complained may times about her severe pain and every time she was
been prescribed some highly strong medicines which were doing no good. A doctor who
operates should be the one who takes a follow up on its patient. Ironically, in the present case the
doctor just flipped his hands and went out of town when his patient genuinely needed him.
Because he would be the better person to advise and inform what exactly be the reason of her
5
pain. We are saying that a doctor cannot do mistakes. Even if in the present case the doctor
mistakenly left a gap on the appellant’s abdominal area while operating, he should have at least
be there when the patient was complaining about such a severe pain. Fortunately, the patient/
appellant went to another doctor and got to know the reason of her pain. Therefore, not only the
operation has to be successful and clean, but a procedure of follow up on the patient’s health is
also important on a doctors duty, because sometimes, many things cannot be seen when it is
fresh, but starts showing its reaction, which would eventually amount to death.
6
2. Dr. ADIT DEY v. SHREE DURGA CHARAN SHEE & ORS.
COURT: State Consumer Dispute Redressal Forum, West Bengal, Kolkota
APPELLANT: Dr. Adit Dey
RESPONDENT:
1) Shree Durga Charan Shee

2) Malay Shee
3) S.V.S. Marwari Hospital
JUDGE NAME:
1) Hon'ble Mr. Justice Ishan Chandra Das, President

2) Hon'ble Mr. Tarapada Gangopadhyay Member
JUDGMENT IN FAVOUR OF: Respondents / Complainants
SUBJECT MATTER: Death of the complainant’s mother due to negligence of the hospital and
its doctors.
FACTS OF THE CASE:
The Complainants got their mother admitted on 25.4.2012 to the OP No. 1-Hospital with
complaint of ‘fracture Intertrochentary Femur (Rt.) (Communited)’ caused by fall in the
bathroom under the treatment of the OP No. 2-Doctor being the
visiting orthopaedic surgeon. Before such admission the operation of Bipolar Hip Prosthesis
(Rt.) was done on 11.8.2010 upon the mother of the Complainants at R. G. Kar Medical College
& Hospital where during the post-operative period ‘ball-joint affixed was removed and
debridement of the wound was done’. Further, after admission of the mother of the
Complainants on 25.4.2012 to the OP No. 1-Hospital, the OP No. 2-Doctor performed on
7.5.2012 the total hip replacement upon the mother of the Complainants. 10 to 12 days after
such operation when the pus was coming out from the site of the operation, the Complainants
7
reported the fact to the OP No. 2-Doctor, but the OP No. 2-Doctor allegedly did not take any
care, rather forcefully released the mother of the Complainants on 29.6.2012 as
alleged. Thereafter, the mother of the Complainants was re-admitted to the OP No. 1-Hospital
on 14.7.2012 when the condition of the mother of the Complainants further deteriorated. After
re-admission, the mother of the Complainants was referred to ITU under Dr. Rahatgi. But the
mother of the Complainants expired on 28.7.2012 at 2.30 P.M. for cardio-respiratory failure in a
case of ‘Septicemia caused by Dyseletrolytemia’ as appearing from the Death Certificate dated
14.7.2012 of the OP No. 1-Hospital. With this factual background the Complainants moved the
Complaint before the Ld. District Forum which passed the order in the manner
aforesaid. Aggrieved by such order the OP No. 1-Hospital and the OP No. 2-Doctor have
preferred the said two Appeals.
1) Whether the appellants of the present appeal were negligent on their part or not?
2) Whether the order/judgment of the district forum was fair or not?
CONTENTIONS:
Appellant/ Opposite Party:-
1) That the Ld. District Forum passed the order impugned erroneously on the basis of
presumption and of extraneous matter as well.
2) That the case suffers from non-joinder of parties being Dr. Rajesh Khusuwah and
Dr. Rahatgi, who were involved in the treatment.
3) That the Ld. District Forum erroneously imposed upon the OP No. 2 the liability of
medical negligence without substantiating the same on the basis of expert opinion.
4) That the OP No. 2-Doctor acted in accordance with the standard medical protocol and
hence, the OP No. 2-Doctor should not be fastened with any liability for negligence.
5) That the OP No. 2-Doctor did not receive any money as alleged.
6) That there is no bar to Orthoplasty more than once.
7) That the Doctor cannot be held liable for medical negligence by applying the doctrine
of res ipsa loquitur. In this connection, the Ld. Advocate refers to a decision of the
8
Hon’ble National Commission in Dr. Naveen Agrohi Vs. Shri Parvas, decided on
7th May, 2013 in Revision Petition No. 2391 of 2012.
8) That in view of the aforesaid submission the instant Appeal bearing No. A/1245/2014
should be allowed and the order impugned be set aside and the Complaint be dismissed
so far as the OP No. 2 is concerned.
9) That the Complaint is not maintainable for non-joinder of parties and denies the receipt of
Rs. 1,00,000/- by the OP No. 1-Hospial being a charitable hospital, as alleged without
any documentary proof.
10) That the treatment by the OP No. 2-Doctor enabled the mother of the Complainants to
walk and hence, the treatment was done as per standard treatment protocol.
11) That there is no allegation against the service rendered by the OP No. 1-Hospital and
hence, the OP No. 1-Hospital is not liable.
12) That the alleged infection did not take place at OP No. 1-Hospital and the OP No. 1-
Hospital should not be held liable for the infection.
13) That in view of the aforesaid submission the Appeal No. FA/1181/2014 should be
allowed and the impugned order be set aside and the Complaint be dismissed so far as the
OP No. 1-Hospital is concerned.
Complainant/Respondent:-
1) That it is well-settled by the higher judiciary that the Complaint should not be dismissed
for non-joinder of parties.
2) That the OP No. 2-Doctor did not take proper care and did not apply proper diligence, as
any other ordinary medical professional would have taken, in treating the mother of the
Complainants as is indicated in the forceful release of their mother in unstable condition.
3) That the OP No. 2-Doctor has not been able to prove by any documentary evidence that
the OP No. 2-Doctor informed mother of the Complainants about the probable side-
effects of the operation in question, which goes against the standard medical protocol, let
alone the breach of medical ethics.
4) That the OP No. 1-Hospital having failed to ensure proper care and diligence on the part
of the OP No. 2-Doctor, who used to render service in the OP No. 1-Hospital, is
vicariously liable apart from it being liable for its deficiency in providing the
9
Respondents/Complainants the treatment papers, Bedhead Tickets, O.T. report, etc.

despite repeated requests including by written one, which was received by the OP No. 1-
Hospital on 10.10.2012.
5) That the aforesaid submission indicates the deficiency in service on the parts of both the
OP No. 1-Hospital and the OP No. 2-Doctor and hence, both the Appeals should be
dismissed and the order impugned be sustained.
JUDGMENT:
The Written Statement filed before the Ld. District Forum concerned by the OP No. 1-Hospital,
as available in the records of A/1181/2014, revealed that the mother of the
Respondents/Complainants was admitted to the OP No. 1-Hospital under the OP No. 2-Doctor
with complaint of ‘fracture Intertrochentary Femur (Rt.)’ and the OP No. 2-Doctor performed the
operation in question without informing the mother of the Respondents/ Complainants about the
possibility of infection which may culminate in the death of the mother, as was indicated in the
absence of proof in this respect on behalf of the OP No. 2-Doctor.It was also revealed from the
materials on records that the OP No. 2-Doctor did not took proper care owed to the mother of the
Respondents/Complainants as was indicated in non-removal of prosthesis from the operated site
to check the infection and formation of pus contrary to the standard medical protocol.Further, the
OP No. 2-Doctor did not proved with evidence whether or not he used the standard medical
protocol for two-stage revision to a uncemented arthroplasty as referred to in a publication in the
Journal of Pain and Joint Surgery, Vol. 82-BN05, July 2000 under the heading ‘Two-
stage uncemented revision hip arthroplasty for infection’. Such breach of duty is one of the
components of medical negligence as was held by the Hon’ble Supreme Court in Jacob Mathew
Vs. State of Punjab &Anr., reported in (2005) 6 SCC 1.The aforesaid discussion clearly indicated
deficiency in service on the part of the OP No. 2-Doctor and hence, the OP No. 1-Hospital was
also vicariously liable for deficiency in service on the part of the OP No. 2-Doctor as was held in
Smt. Savita Garg Vs. The Director, National Heart Institute (supra).
The aforesaid facts and the discussion lead to the conclusion that three essential components of
medical negligence, i.e. ‘duty’, ‘breach’ and ‘resultant damage’ as observed in Paragraph-10 of
10
the decision of the Hon’ble Supreme Court in Jacob Mathew Vs. State of Punjab &Anr. (supra)
are present in the case on hand and hence, the order impugned deserves affirmation.
CONCLUSION:
In the present case the district forum took a correct stand by putting its judgment in favour of the
complainant. And fortunately, the state commission favoured the decision of the district forum.
The appellant in the present appeal was the defendant hospital who appealed to the State
commission in the hope of winning the case so that they don’t have to pay the compensation for
their ill deeds. The appellant of the present case were negligent on their part for not providing
proper treatment to the old lady which caused her death. The deceased and her family
approached the hospital in a hope that the old lady would be fir and fine after getting operated.
There only fault was that they trusted wrong person. Looking into the facts of the case it is clear
that the doctors of the alleged hospital were rash on their part that, the deceased had to cost it
with her life.
11
3. DR. SUTAPA DASGUPT & ANR. VS TAPAN KAR & ANR.
COURT: National Consumer Disputes Redressal Forum, New Delhi
PETIONER:
1) Dr. Sutapa Dasgupt &Anr.

2) The Superintendent, Zenith Super Specialist Hospital
RESPONDENT:
1) Tapan Kar & Anr.
2) Dr. Suparna Sen
JUDGE NAME:
1) HON'BLE MR. JUSTICE AJIT BHARIHOKE,PRESIDING MEMBER

2) HON'BLE MR. ANUP K THAKUR,MEMBER
JUDGMENT IN FAVOUR OF: Respondents
SUBJECT MATTER: Negligence on behalf of doctors and the hospital in operating Caesarean
on a pregnant lady which unfortunately paralyzed her.
FACTS OF THE CASE: The respondent No.1 Tapan Kar filed a consumer complaint in
District Forum, Barasat District, North 24 Parganas alleging that his wife Smt. Gopa Kar during
her pregnancy was under the continuing treatment and medical care of Dr. Suparana Sen
(opposite party No.1). On 14th December, 2010 opposite party No.1 told Smt. Gopa Kar that
child was in good condition and it would be better if opposite party No.1 undergoes caesarean
section for early delivery of child. Thus, on the advice of opposite party No.1 the complainant
admitted his wife at Zenith Super Specialist hospital (petitioner No.2). The hospital offered a
package of treatment for Rs.13,000/-. The amount was deposited in the office of hospital. It is
alleged that on 15th December, 2010 at around 8.30 am caesarean section surgery was done and
a male child was born to Smt. Gopa Kar.
12
It is the case of the complainant that Dr. Sutapa Das Gupta, Anaesthetist, before surgery
administered anaesthesia in the spinal cord of the patient. The wife of the patient on regaining
consciousness after delivery complained that her lower limbs were paralyzed and there was no
sensation before or at the time of passing urine and stool. The opposite party doctors on being
informed about the aforesaid complaint had a conference with Dr. Narain Banerjee and Dr. Sagar
Bose. The team of the doctors decided that the patient required immediate MRI. The wife of the
patient was then taken to the North City Specialist Centre for MRI. The MRI report was received
on 18.10.2010. The doctors at Zenith Super Specialty hospital treated the patient Ms. Gopa Kar
till 23rd December, 2010 when she was referred to Bangur Institute of Neurosciences, where
surgery was conducted to remove the clotted blood. After the surgery at Bangur Institute of
Neurosciences the complainant was told that it was not possible to predict how much his wife
would recover from her situation. After the discharge of his wife from Bangur Institute of
Neurosciences on 29.12.2010 the complainant approached Dr. Pankaj Bajpai and as per his
advice he started physiotherapy for his wife which was stated to be continuing at the time of
filing of the complaint at the monthly expenses of Rs.6,000/-. According to the complainant the
opposite party doctors were negligent in treatment of his wife. Hence a complaint was filed in
the District Forum. Opposite party No.1 in its written statement admitted that Ms. Gopa Kar was
under her treatment and a caesarean section surgery was conducted for delivery of child by the
patient on 15th December, 2010 at opposite party No.3 hospital. According to opposite party
No.1, opposite party No.2 had rightly administered anaesthesia in the spinal cord of the patient
and there was no medical negligence on the part of the opposite doctors or the hospital. Opposite
parties Nos. 2 & 3 has also filed similar written statement denying all the allegations of medical
negligence. The District Forum on consideration of pleadings and the evidence found the
opposite parties guilty of medical negligence. The complaint was accordingly allowed and
opposite parties including the petitioners were directed as under: -
"Ordered that the complaint be and the same is allowed on contest with cost of Rs.10,000/-
against the opposite parties.
Opposite parties were directed to pay a sum of Rs.12,00,000/- as compensation to the wife of
complainant i.e. Gopa Kar aged about + 24 years for causing her permanent disability and loss of
sensation on the both lower limbs from waist to toe and causing permanent mental pain and
13
agony till her death and said amount may be paid by each OPs to the extent of Rs.4,00,000/- also
but liability to the OPs is joint and severally in respect of total compensation.
OPs were directed to comply with the order within one month from the date of this order failing
which for disobeyance and non compliance of Forum's order and for each days delay OPs shall
have to pay an interest at the rate of 8% over the said amount till its final and full payment.
Further for deliberate intention for disobeyance of Forum's order penal action would also be
taken." Being aggrieved of the order of the District Forum, two appeals being FA/142/2013 and
FA/872/2013 were filed by the opposite parties. The State Commission on re-evaluation of
evidence did not find merit in the appeals. Appeals were accordingly dismissed. Being aggrieved
the petitioners have preferred the instant revision petition.
1) Whether the present appeal is maintainable or not?

2) Whether the opposite parties ensured proper treatment and care of the patient Gopa Kar
during the post- surgical recovery period?
CONTENTIONS:
Petitioner/ Appellant:
1) That the impugned orders of the Fora below are based upon erroneous appreciation of
facts. It is contended that the Fora below have return the finding of medical negligence on
the basis of conjecture and surmises in utter disregard of the medical record. It is further
contended that the State Commission has gravely erred in observing that doctrine of Res
Ipsa Loquitor is squarely applicable to the facts of the case including the law laid down
by this Commission in the case of Tagore Heart Care & Research Centre Pvt. Ltd. &Anr.
vs. Mrs.Kanta [2011-(CTI)-GIX-0915-NCDRC] wherein it was held as under: -
"Mere fact that the patient suffers some adverse effect during or after the surgery is not
enough to take a frog-leap and say that it is a case of 'Res Ipsa Loquitor.'
Respondent: Respondent No.1 on the contrary has argued in support of the impugned order.
14
JUDGMENT:
On perusal of MRI report dated 18.12.2010, it was evident that MRI report confirmed the
evidence of epidural and subdural hemorrhagic collections anterior to the spinal cord. There was
a longitudinal oedema in the lower dorsa cord and conus at D12 and L1 vertebral level. Thus, it
was cause of compression of cord leading to neurological symptoms in the patient like patient
could not move both lower limbs and there was bowel and bladder disturbance also.
As per the medical protocol, the opposite party hospital and its doctors on receiving the MRI
report were required to take immediate remedial steps like surgical decompression of the
cord. From the discharge certificate issued by opposite party hospital, it was clear that opposite
parties failed to undertake immediate decompression surgery or to refer the patient to some
competent neuro-surgeon. The aforesaid delay of four days proved fatal and aggravated the
treatment of patient Gopa Kar, which obviously was a case of grave negligence. Therefore,
revision petition was dismissed.
CONCLUSION:
Again, there was a case of medical negligence that happened by the doctors during a caesarean
operation. This case is much alike as any other case where doctors offer a caesarean operation
illuminating the patients and telling them that this would be more safe for the mother and the
child. In fact, the truth is that the doctors and the hospital have leant a new trick to earn more
money, be it in any mean. Looking into the facts of the present case, it is very well clear that that
the main motive of the doctors were to earn money by giving a package of Rs. 13000/- for a
caesarean delivery. They do not care that from where the family could arrange it, they the greedy
self -acclaimed Gods want to earn money and feed their families by keeping other families
hungry. This is how the medical system had become, which has to be stopped by imposing heavy
punishments on the offenders.
15
4. PANKAJ ARORA v. MEDICAL COUNCIL OF INDIA
COURT: Central Information Commission, August Kranti Bhawan, Bhikaji Cama Place,
New Delhi-110066
PETIONER: Shree Pankaj Arora
RESPONDENT: CPIO, Medical Counsel of India
JUDGE NAME (Herein, Information Commissioner): Mr. Shikhar Ranjan
JUDGMENT IN FAVOUR OF:
SUBJECT MATTER:
FACTS OF THE CASE:
The appellant had lodged a complaint dated 28.07.2014 with MCI regarding the death of his son,
Master Yash Arora due to alleged medical negligence in liver transplant surgery performed at
Medanta Hospital, Gurgaon. The MCI registered a case with diary no. DI/2014/129296 and
directed the Haryana Medical Council to take necessary action. Vide RTI application dated
30.02.2016, the appellant sought information seeking details of action taken upon aforesaid
complaint. Having not received any information from CPIO, the appellant filed first appeal. The
first appeal remained unheard. Feeling aggrieved, the appellant approached the Commission.
CONTENTIONS:
Appellant/ Complainant:-
16
The appellant lost his son soon after a liver surgery performed at Medanta Hospital, Gurgaon.
The appellant lodged a complaint alleging medical negligence with Medical Council of India
which was further marked to Haryana Medical Council. The appellant being aggrieved inasmuch
as neither any concrete action was taken upon his complaint nor any information w.r.t. the fate of
his complaint was made available.
Respondent:-
1) The CPIO stated that reply was furnished to the application on 25.07.2016. He stated that
after the appellant preferred second appeal, it was learnt that the then CPIO had sent reply
on a wrong address twice on 10.05.2016 & 14.05.2016. The reply by CPIO dated
10.05.2016 reads as:
“With reference to your RTI application dated 02.03.2016 (received in the Council on
15.03.2016) on the subject cited above, this is to inform you that the Council has not
received any inquiry report from Haryana Medical Council, Chandigarh in this matter so
far. Hence, the PIO is not in a position to provide the desired information.”
However, a copy of the Indian Medical Council (Professional Conduct, Etiquette and
Ethics) Regulations, 2002 is enclosed.
2) The CPIO submitted that as and when, the inquiry report was received from Haryana
Medical Council, the same would be forwarded to the appellant. However, the appellant
did placed some documents before the Commission which revealed that the Haryana
Medical Council referred the matter to Civil Surgeon, Gurgaon on 13.11.2014 for
inquiry. Vide letter dated 14.05.2015, the Haryana Medical Council informed the
appellant that report from Civil Surgeon Gurgaon was awaited and assured suitable action
upon receipt of the same. Another letter dated 03.12.2015, written by Civil Surgeon,
Gurgaon to Registrar, Haryana Medical Council was been brought on record. The same
reads as:
“You are hereby informed that the Enquiry Report has already been sent to you on
27.01.2015 vide letter date 2015/22.”
3) The CPIO, MCI pleaded ignorance regarding the aforesaid communications
17
JUDGMENT:
The Haryana Medical Council already received the enquiry report form Civil Surgeon, Gurgaon.
The CPIO, MCI would access and obtain a copy of the enquiry report from Haryana Medical
Council besides seeking a report on action taken after receipt of enquiry report from Civil
Surgeon Gurgaon. The same would be furnished to the appellant within 4 weeks of receipt of his
order. The CPIO, MCI filed a compliance report before the Commission by 30.06.2017.
The appeal was therefore allowed in the aforesaid terms.
CONCLUSION:
The present case was basically an RTI application which was been filed by the son of the
deceased against the hospital where his father died while being treated. The son filed an RTI
seeking information from the hospital which would make clear that whether his father died due
to negligence of the hospital or not. In the present hearing where the son appealed, the MCI
clarified for its delay in reply and the contention of both parties were granted. The purpose of the
hearing was to take clarification of both the parties and look whether the second appeal by the
son should be allowed or not. And hence the appeal was allowed.
18
5. SUSMITA ROYCHOWDHURY & ANR. V. B.M. BIRLA HEART

RESEARCH CENTRE AND OTHERS
COURT: National Consumer Disputes Redressal Commission
PETITIONER: Susmita Roychowdhury & Anr. - W/o Dr. Amulya Madhab Roy Chowdhury,
(R/o at Block-6, Flat No. 30, Behala Govt. Flat, Banamali Naskar Road, Kolkata-700 060, P.S.
Behala24-Parganas (South))
DEFENDANT: 1. B.M. Birla Heart Research Centre & Ors. (1/1, National Library Avenue, P.S.
Ekbalpore Kolkata - 700 027), 2. B.M.Birla Heart Research Centre (1/1, National Library
Avenue, P.S. Ekbalpore Kolkata (W.B.) 3. Dr. Srirup Chaterjee (Dobar Court Flat No. 206, 22
Dobar Road, Kolkata-700019 West Bengal) 4. Dr. Tapan Kumar Ghosh (B.M. Birla Heart
Research Centre, 1/1, National Library Avenue Kolkata -700 027(W.B.) 5. DR. Srirup Chaterjee
(Woodland Nursing Home, 8B, Alipore Road Kolkata - 700 027) 6. Dr. Tapan Kumar Ghosh
(B.M. Birla Heart Research Centre, 1/1, National Library Avenue Kolkata - 700 027)
BENCH: Division Bench
JUDGES NAME: Hon’ble Mr. Justice D.K. Jain, President and Hon’ble Mrs. M. Shreesa,
Member
DATE OF JUDGEMENT: April 25, 2017
JUDGMENT IN FAVOR OF: Respondent as Appeal by Petitioners was partly allowed to a

certain extent.
SUBJECT MATTER: An Appeal is filed questioning the correctness and legality of the order
dated 13.01.2009, passed by the West Bengal State Consumer Disputes Redressal Commission at
Kolkata alleging medical negligence on the part of the Respondents in treating the Patient, has
been dismissed.
FACTS OF THE CASE: An appeal was filed by Wife and Son of the Deceased Dr. Amiya
Madhab Roy Choudhury, who was 70 years of age got retired from the service of Central
19
Government and now was practicing Homeopathy. On May 20, 1998 due to some uneasiness in
chest, he got some pathological tests done and also got admitted to SSKM Hospital where on
diagnosis it was found that he is suffering from unstable Angina. For further treatment, he got
discharged on June 09. 1998 and consulted another Dr. Srirup Chatterjee, practicing doctor at
B.M. Birla Heart Research Association who advised him for Coronary Angiography (CAG)
which was conducted on June 11, 1998. Serum examination was also done under Dr. T.K Ghosh,
which demonstrated that the Patient was experiencing Hepatitis C infection Positive (HCV+) and
his glucose (fasting) level was 98 mg. /dl. Heart catheterization and Coronary Angiography,
directed on 16.06.1998 by Dr. J.C. Sharma, Consultant Cardiologist, demonstrated that the
Patient had extreme triple vessel ailment and Grade III Mitral Regurgitation. He was exhorted
Coronary Artery Bypass Graft Surgery (CABG) with mitral valve substitution. From there on,
two specimens of serum were sent by the Hospital to Sanjibon Diagnostic and Medical Research
(Pvt.) Ltd. for further diagnosis to Peerless Hospital and B.K. Roy Research Center for second
assessment. Reports gotten on 18.06.1998 and 19.06.1998, recommended Hepatitis C infection
negative (HCV-) meaning in this way that he was not experiencing HCV+ as analyzed before.
CABG was to be conducted on June 25, 1998. The Appellants were approached to organize
blood, which they did on 24.06.1998. Be that as it may, all of a sudden the operation was put off
for an uncertain period, without revealing any reason therefor. Eventually, the method was
performed by the Treating Doctor on 30.06.1998. The Patient did not recover awareness after the
surgery and stayed on ventilator bolster till he was announced dead on 11.07.1998. According to
death declaration, the reason for death was myocardial disappointment, multi-organ brokenness
and post CABG status.
Where the State Commission has arrived at the conclusion that: there was no postponement with
respect to the Treating Doctor in playing out the operation on 30.06.1998, accordingly deferral
was inferable from the state of the patient; discontinuous nonappearance of noting identifying
with the observing/treatment of the Patient on a portion of the days did not equivalent to any
carelessness as the Respondents had battled on promise that the treatment was proceeded with;
assent was taken before playing out the surgery on 30.06.1998, notwithstanding the assent
having been taken at the season of affirmation; if the demise had occurred on the date of CABG
system itself, i.e. 30.06.1998, as charged by the Appellants, the support to that impact would
have been made in the comments section and not in the segment implied for marks. Resultantly,
20
as noted over, the State Commission has expelled the Complaint, holding that there was no
restorative carelessness on part of the Respondents in treating the Patient.
Hence an appeal was filed by the Petitioners questioning the correctness and legality of the order
dated 13.01.2009, passed by the West Bengal State Consumer Disputes Redressal Commission at
Kolkata alleging medical negligence on the part of the Respondents in treating the Patient which
has been dismissed.
 What Constitutes Medical Negligence?

 Whether the Treating Doctor was negligent in treating the Patient.
 Whether there was delay in Conducting the Procedure.
 Whether the treating Doctor, was acting as a medical surgeon of reasonable skill and
prudence.
CONTENTIONS BY PARTIES:
Arguments from the Appellant Side:
(i) however all the essential examinations for CABG were finished by 19.06.1998, the
operation was postponed till 30.06.1998, in spite of the crumbling wellbeing state of the
Patient;
(ii) the myocardial harm happened amid the hospitalization time frame in view of undue
deferral in surgical mediation;
(iii) according to Bed Head Tickets, there was no checking and no medication was
recommended/given to the Patient from 16.06.1998 to 23.06.1998 and again from
26.06.1998 to 28.06.1998;
(iv)no post-agent care was gone up against 01.07.1998, 03.07.1998, 07.07.1998, 10.07.1998
and 11.07.1998;
(v) despite the fact that according to the passage in the Master Register kept up by the
Hospital, the Patient was announced "Dead" on 30.06.1998 yet was continued crisis life
emotionally supportive network till 11.07.1998 for monetary profits and
21
(vi) Assent was not taken from the Appellants before playing out the CABG methodology.
The Complainants appealed for an aggregate remuneration of ₹19, 99,000/ - from the
Respondents for being lacking in their administrations to the Patient, bringing about his death.
Arguments from the Respondent Side –
(i) CABG having been performed on 30.06.1998, the Complaint documented on 05.07.2000
was barred by Limitation Act and
(ii) The State Commission did not have the Jurisdiction to settle upon the issue, as the same
included convoluted inquiries of actuality and law, requiring recording of broad proof
and master's assessment.
(iii) it was argued that the Treating Doctor was a Consultant Doctor related with the Hospital
and consequently, the Hospital had no extension at all to meddle in the matter of choice
and administration of treatment that was given by him; nearness of Hepatitis C infection
had no pertinence so far as the surgery was concerned;
(iv) the treatment record did not demonstrate that the CABG was booked for 25.06.1998, in
any case, choice as to settling the date for CABG relied on upon the clinical judgment of
the Treating Doctor/specialist and patient's wellbeing condition; persistent had not
endured extreme myocardial harm few days before the date of surgery and no such
articulation was made by the Treating Doctor; putting the patient on ventilator support
after CABG is an ordinary practice
(v) question of the patient having HCV contamination has no importance with the strategy of
CABG and thusly the topic of not following up on the negative report is unimportant with
the end goal of performing surgery (CABG) or settling the date therefor
(vi) And the patient was experiencing insecure angina from the day of confirmation and
immediate and legitimate care was taken.
All the contentions raised by appellants were rejected by the respondents. It was pleaded that
there had been neither any negligence in conducting the procedure nor unnecessary delay on his
part in performing CABG, as alleged.
22
JUDGMENT:
Appeal is partly allowed to the extent indicated supra. The said amount shall be paid by the
Hospital, to appellant within four weeks from the date of receipt of a copy of this order, failing
which the said amount shall carry interest @ 9% p.a. from the date of filing of the Complaint till
actual realization as Hospital was found negligent in their work as proper record of the Patient
was not maintained.
The essential of Medical negligence were not established and proved by the appellants as the
same procedure is conducted everywhere and is well known all over the world. He acted as he
was expected to act as medical practitioner in the performance of CABG procedure. There was
no lack of care and the doctor actions were taken in their sound mind considering the health of
the patient.
CONCLUSION:
The theory of Medical Negligence is applied in this case. Though all the essentials required to
prove that Medical Negligence was there were not proved by Appellants.
Medical negligence said to be constituted when –
(i) 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;
(ii) 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; and
(iii) 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
23
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. This
was held in the case of Jacob Mathew state of Punjab &Anr. (2005) 6 SCC 1
With the above leading Judgement, one more case Judgement was referred i.e. Hunter Vs.
Hanley (1955) SLT 213, Lord Clyde observed that “in the realm of diagnosis and treatment there
is ample scope for genuine difference of opinion and one man is not clearly negligent merely
because his conclusion differs from that of other professional men, nor because he had displayed
less skill or knowledge than others would have shown. The true test for establishing negligence
in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of
such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care.“
Hence, a doctor cannot be held to be negligent merely because in a matter of opinion, he made an
error of judgment. So long a doctor follows a practice, acceptable to the medical profession by
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 doctor had followed.
Succinctly put, the test to establish negligence on the part of the doctor is whether the course he
had adopted was the one which no professional person of ordinary skill would have adopted if
he/she had been acting with ordinary care.
24
6. STATE OF M.P. & ORS. V. SAMARWATI BAI & ANR.
COURT –M.P High Court
JUDGE – Hon’ble Judge Sanjay Yadav
DATE OF JUDGEMENT – May 04, 2017
JUDGEMENT IN FAVOUR OF - Appellant
SUBJECT MATTER –Suit was decided and doctor was held to be negligent without hearing
the opposite party therefore an appeal was filed against it.
FACTS – An appeal was filed by the Doctor who was respondent in a suit filed by a husband
and his wife. The couple had undergone tubectomy operation by the said doctor as they were
already having 4 children. But having undergone this operation, they still gave a birth to twins.
Therefore they asked for Compensation and damages of Rs. 5, 00,000. They underwent the
operation on 14.4.1984 certificate Ex. P/1, in this regard was issued by the Medical Officer. But
the wife gave birth to twins on 12.5.1991.
As the case was to be heard on 4.12.1995 by Trial Court directed the parties to keep their
witnesses present and posted the matter for 19.4.1996.On 19.4.1996 as the Presiding Officer was
on leave the matter was adjourned and posted for 1.5.1996 whereon the date was fixed as
27.9.1996. On this day the plaintiff got herself examined and closed her evidence. The Trial
Court instead of giving opportunity to the defendants heard the matter finally and decreed the
suit on 1.10.1996 for Rs.50, 000/- with interest and costs.
Hence the appeal is filed by the Doctor (Respondent) alleging that no negligence is there on her
behalf and the suit was decreed without giving an opportunity to be heard.
ISSUES – Whether the doctor is liable for medical negligence while performing the tubectomy
operation and its failure.
CONTENTIONS OF THE PARTIES:
Appellant: The Doctor admitted that the Tubectomy Operation was conducted by her but she
denied that she was negligent and denied the liability to pay compensation. It was also stated that
25
she is an experienced doctor and there had been no complaint of any sort in respect of her
professional attainment. It was also stated that under Medical Termination of Pregnancy Act,
1972, the facility of termination of pregnancy is available free of cost, the petitioner should have
availed the same in case of unwarranted pregnancy. Also in the Standard Text Book it is stated
that operation is not always successful. It was also contended on behalf of her that there being an
authoritative pronouncement of law by the Supreme Court in case of failure of T.T Operation
that unless the negligence of the doctor is established the doctor cannot be held liable for
damages.
Respondent: Though in the suit filed by the Plaintiff they had made Doctor Liable for
conducting the operation as she was negligent and gave birth to Twins. But Later when the
appeal was filed by Doctor, the plaintiff deposed that the doctor was not negligent and performed
the operation after taking due care. Plaintiff had an option of abortion but she didn’t want it as
she thought that if children have come then she will give them birth.
JUDGEMENT –
As the plaintiff failed to establish the negligence of doctor and even did not have the pregnancy
terminated the judgment decree dated 1.10.1996 is not sustainable and is hereby set aside. The
suit filed by respondent is dismissed. However, there shall be no costs.
CONCLUSION -
Negligence is interpreted in various judgments as a breach of duty caused by the omission to do

something, which a reasonable man, guided by those considerations, which ordinarily regulate
the conduct of human affairs, would do something which prudent man would not do.
In State of Punjab v. Shiv Ram and others (supra) it is held:
“We are, therefore, clearly of the opinion that merely because a woman having undergone
asterilization operation became pregnant and delivered a child, the operating surgeon or his
employer cannot be held liable for compensation on account of unwanted pregnancy or
unwanted child. The claim in tort can be sustained only if there was negligence on the part of the
26
surgeon in performing the surgery. The proof of negligence shall have to satisfy Bolam's test. So
also, the surgeon cannot be held liable in contract unless the plaintiff alleges and proves that the
surgeon had assured 100 % exclusion of pregnancy after the surgery and was only on the basis of
such assurance that the plaintiff was persuaded to undergo surgery. As noted in various decisions
which we have referred to hereinabove, ordinarily a surgeon does not offer such guarantee. The
cause of failure of sterilization operation may be obtained from laparoscopic inspection of the
uterine tubes, or by x-ray examination, or by pathological examination of the materials removed
at a subsequent operation of re-sterilisation. The discrepancy between operation notes and the
result of x-ray films in respect of the number of rings or clips or nylon sutures used for occlusion
of the tubes, will lead to logical inference of negligence on the part of the gynaecologist in case
of failure of sterilisation operation. (See: Law of Medical Negligence and Compensation by R.K.
Bag, Second Edition, and p.139)
The cause of action for claiming compensation in cases of failed sterilization operation arises on
account of negligence of the surgeon and not on account of child birth. Failure due to natural
causes would not provide any ground for claim. It is for the woman who has conceived the child
to go or not to go for medical termination of pregnancy. Having gathered the knowledge of
conception in spite of having undergone sterilization operation, if the couple opts for bearing the
child, it ceases to be an unwanted child. Compensation for maintenance and upbringing of such a
child cannot be claimed.
27
7. RAMKESH (DEAD) THROUGH ITS LRS V. DR. R.N. SRIVASTAVA &

ANR
COURT – National Consumer Disputes Redressal Commission
JUDGE – Hon’ble Dr. B.C. Gupta, Presiding Officer and Hon’ble Dr. S.M. Kantikar Member
DATE OF JUDGEMENT – April 28, 2017
JUDGEMENT IN FAVOUR OF - Respondent
SUBJECT MATTER – The appellants demanding the compensation for the negligence of a
surgeon for performing a spinal cord injury though he was an orthopaedic surgeon.
FACTS – Shri Ramkesh who was a patient was suffering from knee pain from very long time
and consulted a doctor, namely, Dr. R. K. Singh of Kanpur. With his treatment he got relieved
from pain therefore he to get rid of this pain and to walk freely he contacted Dr. R. N. Srivastava
who suggested MRI test at Raj Scanning Centre. However, this doctor performed spinal surgery
instead of knee surgery by which his both legs were became paralyzed. During post-operative
period, the father of the deceased patient requested him for opinion of Dr. Mazhar Husain, the
specialist, but he denied and discharged him with the direction to show any doctor for
consultation on 9.11.1998. His condition became deteriorated day by day. He incurred about
Rs. 4, 50,000/-. For the alleged medical negligence, the complainant/patient, Shri Ramkesh filed
a complaint before the State Commission and prayed for compensation of Rs.11, 10,000/- from
the OPs. During the pendency of the case, the complainant/patient, Shri Ramkesh died.
Therefore, his wife, Smt. Sheela Devi and minor daughter, Kumari Puja were impleaded as the
complainants. Before the State Commission, Dr. R. N. Srivastavaall the allegations were denied
and the suit was decided in favour of him as no negligence was seen. Therefore an appeal was
filed under Section 19 of the Consumer Protection Act, 1986 by the complainants against the
order dated 02.08.2007 passed in Complaint Case No. 52/SC/2000 by U. P. State Consumer
Disputes Redressal Commission, Lucknow.
ISSUES –Whether the doctor was negligent while taking decision and conducting the spinal
operation?
28
CONTENTIONS BY THE PARTIES –
Appellant: The complainant’s main allegation was that doctor was an Orthopaedic Surgeon. He
was not having enough experience to operate spinal cord surgery as it is most sensitive part of
the body and is related to nervous system. Therefore the operation should have been conducted
by a neuro surgeon only.
Respondent: He denied all the allegations and pleaded that the operation was done with due
care and caution. He also pleaded that as per the MRI report, the patient was suffering from
cordedema/Myelomalacia i.e. degenerating disease of spinal cord and there was very little
chance of recovery. Therefore, performing said operation, the cord degeneration process may be
stopped or it will not progress. The other MRI report date 17.9.1998 filed by the complainant
does not suggest that due to operation, there was a spinal cord damage. He has consulted the
famous surgeon, Mr. Mazhar Husain on telephone in presence of his father. Dr. Mazhar Husain
also suggested that there is very little chance of success after operation yet endeavour should be
made to release the pressure on the spinal cord. The operation was uneventful.
JUDGEMENT –
No illegality, irregularity or Jurisdictional error was found in the order passed by state
commission therefore the appeal was dismissed and the parties were asked to bear their own
costs. On the basis of all medical reports, the doctor was found a competent surgeon and having
experience in performing spinal surgeries. No negligence was found in performing the Spinal
Injury of the Patient. The patient suffered the effects of myelomalacia, it was not due to
negligence of doctor.
RATIONALE OF THE JUDGEMENT –
It was found that No negligence was on the part of Doctor as he was an experienced doctor and
The MRI repor was suggestive of patient suffering from Cord Oedema/Myelomalacia. The
finding also revealed 'Degenerative Small Postero-Central Disc Protrusion'. Thus, it is clear that
it was a case of degeneration of disc. And disc. Protrusion and involvement of Cord Parenchyma.
It was examined that Doctor was a Consultant Surgeon in charge of spinal cord injury unit,
29
Department of Orthopaedic Surgery, King George Medical University, Lucknow since 1994 and
he had vast experience to treat spinal cord disorders and spinal surgeries. As per literature from
Campbell's Operative Orthopaedics (Ex. A), a Neuro surgeon or an Orthopaedic surgeon can
perform spinal surgery.
"No cure is not a negligence". In the instant case, no cure was not due to any negligence of
doctor. In this context, the judgment of Hon'ble Supreme court in Jacob Mathews Case (2005) 6
SCC 1, was relied wherein it was observed by Hon'ble Supreme Court as under:-
"When a patient dies or suffers some mishap, there is a tendency to blame the doctor
for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it
is well known that even the best professionals, what to say of the average professional,
sometimes have failures. A lawyer cannot win every case in his professional career but surely
he cannot be penalized for losing a case provided he appeared in it and made his
submissions."
30
8. RAVI KUMAR & ANR. V. DR. M. SYAM SUNDER
COURT – National Consumer Dispute Redressal Commission New Delhi
JUDGE – Hon’ble Mr. Dr. S.M. Kantikar, Presiding Member
JUDGEMENT IN FAVOUR OF - Respondent
SUBJECT MATTER – Seeking of compensation as a still born child death was caused in the
mother’s foetus due to medical negligence.
FACTS – The petitioner was a pregnant lady Smt. Padmavati under regular observation by Dr.
Shyam Sunder at Sri Venkateswara Hospital, Nandigam, and Krishna District who was the
respondent in this case. During the pregnancy of 9 months, every time the examination was done
it was found that the growth of baby is good. But on November 23, 2006 the patient had labour
pains and got admitted in the Doctors Hospital next day after consulting her. The operation was
conducted by the doctor but delivered a dead foetus. Therefore a case was filed against the
doctor that she was careless and negligent in her duties as the patient lost her baby.
A complaint before the District Consumer Disputes Redressal Forum, Vijayawada (hereinafter
“District Forum”) and claimed a sum of Rs.2, 50,000/- as compensation. After considering
pleadings and evidence, the District Forum partly allowed the complaint and directed the
opposite party to pay Rs.2,00,000/- with interest at the rate of 9% per annum to the complainants.
Being aggrieved by the order of the District Forum the opposite party preferred first appeal
before the State Consumer Disputes Redressal Commission, Andhra Pradesh (hereinafter, the
State Commission). It was partly allowed and State Commission reduced the compensation
amount from Rs.2, 00,000/- to Rs.50, 000/- and confirmed the rest of the order. Being aggrieved
by the impugned order of the State Commission, the complainant filed the instant revision
petition. Therefore the petitioners filed a revision petition against this order.
ISSUES – Whether there was medical negligence from the part of the doctor that caused the
death of the unborn child in petitioner’s foetus.
31
CONTENTIONS BY THE PARTIES –
Petitioner:
The contentions from the appellant side were that doctor was negligent in performing her duties
as she failed to monitor the patient properly. From the medical record, it was clearly seen that the
patient weight was reducing continuously in the last month of pregnancy which had gained 7kgs
in the previous month. The body weight of the patient recorded from 05-07-2006 to 23-11-2006.
Accordingly, the weight on 05-07-2006 was 58 kg., 07-08-2006 was 59 kg., 12-09-2006 was 60
kg., and on 23-10-2006 it was 64 kg... Thereafter, on 22-11-2006 her weight was recorded as 60
kg. There was an obligation of doctor to explain the reason for sudden loss in weight. The doctor
was careless that she did not send her for scanning or for expert opinion. It was further submitted
that ultrasound study was not advised by the doctor.
Respondent –
The respondent alleged that the patient had come and got admitted in the hospital for severe pain
and discomfort and after relief from the pain she had left. The next day evening again she visited
the hospital for severe abdominal pains where it was found that she is having inactive labour, as
it was post LSCS pregnancy and there was chance of threatened rupture.Therefore, immediate
Caesar operation was performed. The dead foetus was removed. The patient was discharged on
seventh day after removal of sutures, without paying the balance of amount to the hospital. The
doctor contented that she has performed her best duty to redeem the patient out from emergency.
She also said that she is a qualified gynaecologist having 20 years’ experience and no negligence
of any nature was attributed to her and as Nandigam is rural area the facilities are very less to
carry out the treatment.
JUDGEMENT –
The revision petition was dismissed as it was cleared that the diagnosis of the patient was correct
as there was a threatened rupture of uterus therefore the treating doctor had a prime concern to
save the mother in the instant case.
32
CONCLUSION –
On the basis of the judgment of Apex Court dated 24-03-2009 between Ms. Ins. Malhotra vs. Dr.
A. Kriplani & Ors. To establish that, he did not render any negligent treatment. According to the
medical literature there are number of causes for still born delivery which include the fatal
chromosomal abnormalities, malformation, fatal infections, Rh incapability and itrogenic causes.
The patient did not followed advice to get admitted initially so that the foetus might have been
saved as there would have been constant and continuous medical care. Even the medical board
arrived at the conclusion that there was no medical negligence in the treatment given by the
opposite party. It was the complications during delivery. There was no deficiency in service or
any negligence on the part of the opposite party.
33
9. AJAY KUMAR CHAUDHARY V. UNKNOWN
COURT –Tis Hazari Court, New Delhi
JUDGE – Ms. Hemani Malhotra Special Judge (Pc Act)
JUDGEMENT IN FAVOUR OF – Respondent
SUBJECT MATTER – Revision petition has been filed against the impugnedorder passed on
the negligence and rashness of Hospital.
FACTS-
The Complainant as well as the revisionist filed a case for her daughter Priyanshi who was 7
years old as she was admitted to St. Stephen Hospital at emergency ward on March 03, 2016.
She was given an injection under the supervision of Junior Paediatrician and after that she lost
her consciousness and was transferred to ICU. Many medicines were administered to her by
various Junior Doctors. On the demand of the complainant that she should be treated by Senior
Doctor, no action was taken. Therefore he protested to shift his daughter to another hospital, but
was threatened by the medical staff that they will give a report of Left against Medical Advise
(LAMA). She was kept at ventilator where she died. The demand of Post-mortem was also
resisted by the treating doctor and was only allowed on the intervention of SI Mahender of PS
Tis Hazari. Therefore the complainant filed a complaint at PS Subzi Mandi on 21.03.2016,
however, no action was taken by the police authorities. Constrained by the inaction, he filed an
application u/s 156(3) Cr.P.C. before the learned MM.
The learned MM on the persuasion of the complainant that he cannot await the viscera report,
heard the arguments of the complainant and dismissed the application u/s 156(3) Cr.P.C.
Vide impugned order dated 03.09.2016. He also granted liberty to the complainant to move
fresh application in case no action was taken by the police even after obtaining viscera report.
Therefore a revision petition is filed against the impugned order on September 03, 2016
34
ISSUES- Whether there was negligence on the part of Hospital in treating the patient and
whether the order passed by MM was impugned.
CONTENTIONS OF THE PARTIES –
Complainant: There was no independent opinion from the side of complainant. All his
contentions were relied on the case negligence and rashness. He contended that his request of
asking for consultation by senior doctors was rejected. He was even not allowed to transfer his
daughter as hospital department tried to threaten him. Even the demand of the Post-mortem
report was rejected and was only allowed after the intervention.
Respondent: It was argued there was no case of negligence or rashness as the complainant was
completely unaware about the status if the FSL report. The ATR was also submitted in the court
by SI Sanjay Kumar Gupta, in charge PP Tis Hazari, Subzi Mandi wherein he has specifically
mentioned that FSL result and autopsy report have been obtained and resultantly, opinion was
sought from Dr.Ashok Sagar, MBBS, MD. As per his opinion death of deceased Priyanshi was
caused due to multiple organ failure because of septicaemia.
JUDGEMENT-
The revision petition was dismissed and disposed and it was held that the order given by the MM
to dismiss the application was correct. It was noted that the appellant was premature in filing the
application u/s156(3) Cr.P.C. It was clarified that after receiving the opinion of DCM, and the
hospital is found negligent then if police is not taking any action then the complainant has all the
rights to approach the court of law.
CONCLUSION –
The judgement was given on the basis of the Jacob Mathew v. State of Punjab & Anr. Reported
as (2005) 6 SCC 1, case as complainant was totally unaware about the report and its
technicalities the order of the MM was not impugned as Action Taken Report (ATR) was called
from SHO PS Subzi Mandi. The opinion in the Post-mortemReport of Priyanshi wherein it was
observed that "definite opinion regarding death will be given after receipt of report of chemical
analysis of viscera and histo•pathological examination of viscera." Accordingly, blood gauze and
35
viscera of the deceased were deposited in FSL and Histo•pathology of the deceased was
deposited in Hindu Rao Hospital for expert opinion. Therefore in entertaining the application and
making the hospital negligent is not correct therefore the application should be dismissed and
after the arrival of new reports, police have to take action accordingly and if not done so, the
applicant has liberty to take help of court of law.
36

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Medico-Legal Reporter, Inaugural Issue

LEGAL DESIRE MEDIA & PUBLICATIONS

Publishing Editor & Co-ordinator:

(Prof.) Dr. Pradeep Raghav

THE JOURNAL IS DIVIDED INTO 2 PARTS:

PART 1: RESEARCH PAPERS

Defining Forensic Science

Role of Forensic Science in Crime Investigation

Legal Provisions Supporting Criminal Investigation

Restrictive use of Forensic Evidence in Indian Legal Scenario

Volume 1, March 2003.

Constraints Faced By Allied Subsidiaries

Some Landmark Judgments in Forensic Science Investigation

Importance of Forensic Science in Law

The right to reproductive autonomy

Toxicity of Amygdalin: A Significant and Emphasizing Facet of Study in

2. Forensic Toxicological Findings

Criminal Poisoning with Neurotoxic fatal exposures & its medicolegal

Medicolegal Importance of neurotoxic poisons in homicides, suicide and accidental poisoning is

5. Modi’s Medical Jurisprudence & toxicology. 25th Ed. Lexisnexis 2015

Authors of the above Case Series:

Investigation of Time since Death by Detective Insects

Estimating the minimum post-mortem interval

Steps in estimating the postmortem index with insect larvae

Using insect data for determining the site of crime

Foots Prints: A Evidence of Locomotive from Juridical Outlook

In footwear impression evidence, the significance of a positive identification can be conveyed

14. Hamm , E. D. The individuality of class characteristics in Converse All-Star footwear,

Medical Negligence: The Dark side of the Noble Profession

Doctor-Oh! I am sorry but we couldn’t save her life.

Three essential ingredients to prove negligence would be:

1) Forceability of harm-The harm should be forceable or predictable. It should not be out of

2) Proximity of Relationship-There should be a proximate relationship between the person who

If there is an absence of due care the following should be looked upon:

Res Ipsa Loquitor

What is Medical Negligence?

What are the liabilities of doctors according to different laws?

Negligence under Contract

Negligence under Consumer Protection Legislation

Can doctors be brought under criminal Liability?

Landmark and Important cases on Medical Negligence

The Role of Human DNA Profiling in the Criminal Justice System: An

DNA Profiling and the Indian Legal Framework:

(a) Constitution Of India

(b)Indian Evidence Act, 1872:

(c) Criminal Procedure Code, 1973:

DNA Profiling: Some Landmark Judgments

“Thus, the giving of finger impressions or of specimen writing or signatures by an accused

relevant facts by an oral statement or a statement in writing, made or given in Court or

The Draft D.N.A. Profiling Bill, 2017:

Following are some of the salient features of the Bill:113

 Constitution of a DNA Profiling Board, a statutory body to undertake functions such as

Critique of the Bill:

Conclusion: DNA analysis is an extremely useful and accurate technology in ascertaining

PART 2: CASES DIGEST

1. NIKHAT PARVEEEN v. SANA NURSING HOME & ORS.

COURT: State Consumer Disputes Redressal Commission, West Bengal, Kolkata.

APPELLANT: Nikhat Parveen

1) Sana Nursing Home

1) Hon’ble Mr. Justice Ishan Chandra Das, President

JUDGMENT IN FAVOUR OF: Nikhat Parveen (Appellant)

SUBJECT MATTER: Compensation on negligence by the doctors while operating a caesarean.

FACTS OF THE CASE: