whether Satish and Dharambir can be convicted for carrying commercial quantity for which minimum punishment is ten years. Learned counsel for the appellants submits that the police has recovered 500 grams from each of these accused and on personal search of their body, it was recovered from the pockets of kurta and pant respectively. It is urged that though each of these three accused was separately having charas, no presumption can be drawn that each of them knew that the other was carrying charas. In this case unfortunately the prosecution has failed to lead any evidence in this regard which would even remotely indicate that all the three accused acted together or connived or conspired with each other in the purchase and sale of charas. There is not even a whisper in this behalf.

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal  No(s).  205-206/2010
SATISH & ANR. ETC.                                     Appellant(s)
                                VERSUS
STATE OF HARYANA                                Respondent(s)
  O R D E R
These two appeals arise out of the judgment and order
dated   22.10.2008   passed   by   the   High   Court   of   Punjab   and
Haryana in Criminal Appeal Nos. 1164-SB of 2000 and 1185-
SB of 2000.
Facts necessary for decision of this case are that on
29.08.1999,   Amar   Dass   (PW7)   was   present   at   Sonepat   T-
point,   Gohana   when   Baljeet   Singh   (PW6)   met   him.     He
received  secret  information  that  the  three  accused  Raju,
Dharambir   and   Satish   are   indulging   in   the   sale   of
contraband substance and they would be coming on a motor
cycle   bearing   No.   HR-11-9597.     According   to   secret
information   received   by   him,   all   three   accused   would   be
carrying   charas.     He   accordingly   setup   a   Naka   and
attempted   to   stop   the   motor   cycle.     On   seeing   the   Naka,
the   motor   cycle   did   not   stop   and   drove   towards   Sonepat.
The   accused   were,   however,   apprehended   and   the   motor
cycle was stopped. 
PW7 informed the accused that they were suspected of
1

carrying   contraband   substance   and   therefore   gave   the
option   to   them   that   they   could   be   searched   either   by   a
Magistrate or a Gazetted Officer.  Written notice in this
behalf   was   given   to   the   accused.     However,   Raju   alias
Rajbeer   managed   to   run   away   from   the   spot   after   leaving
his   packet   on   the   motor   cycle.     500   grams   of   charas   was
recovered from the pockets of kurta and pant of the other
two accused - Satish and Dharambir.  After completing all
formalities,   drawing   samples,   getting   them   analysed   the
accused   were   charged   with   commission   of   offence
punishable   under   Section   20C   of   the   Narcotic   Drugs   and
Psychotropic Substances Act, 1985.   Both the Trial Court
and   the   High   Court   have   considered   them.     Hence   these
appeals.
As   far   as   Raju   is   concerned,   his   stand   was   that   he
was neither present nor driving the motor cycle.   As far
as this aspect is concerned, the prosecution has examined
Chand Singh (PW8) who stated that Raju is the brother-in-
law   of   brother   Baljeet   Singh   and   Raju   had   come   to   him   a
year   back   along   with   the   accused   Dharambir   and   at   that
time he already had a motor cycle.  The statement of Raju
that he was not on the motor cycle cannot be believed.
After   going   through   the   evidence   on   merits   and   with
regard to recovery of charas from the accused, we do not
find   any   reason   to   disbelieve   the   same.     We   accordingly
hold that all the three accused are guilty of committing
an   offence   under   Section   20   of   the   Narcotic   Drugs   and
2

Psychotropic Substances Act, 1985. 
However, the issue raised before us is whether Satish
and   Dharambir   can   be   convicted   for   carrying   commercial
quantity   for   which   minimum   punishment   is   ten   years.
Learned   counsel   for   the   appellants   submits   that   the
police has recovered 500 grams from each of these accused
and   on   personal   search   of   their   body,   it   was   recovered
from the pockets of kurta and pant respectively.
It   is   urged   that   though   each   of   these   three   accused
was separately having charas, no presumption can be drawn
that   each   of   them   knew   that   the   other   was   carrying
charas.     In   this   case   unfortunately   the   prosecution   has
failed   to   lead   any   evidence   in   this   regard   which   would
even   remotely   indicate   that   all   the   three   accused   acted
together or connived or conspired with each other in the
purchase and sale of charas.  There is not even a whisper
in this behalf.
In the peculiar facts and circumstances of this case,
we   convert   the   conviction   of   Satish   and   Dharambir   from
Section   20C   to   Section   20B   of   the   Narcotic   Drugs   and
Psychotropic   Substances   Act,   1985.       In   such   an
eventuality,   the   maximum   imprisonment   is   ten   years   and
fine   of   Rs.1,00,000/-   (Rupees   one   lac   only).     We   alter
the   sentence   to   the   period   already   undergone   which   is
about   5   years   and   maintain   fine.     As   far   as   Raju   is
concerned,   the   evidence   on   record   is   sufficient   to   hold
him   guilty   for   carrying   commercial   quantity   and   his
3

appeal is dismissed.
The criminal appeals stand disposed of.
� ....................J.
[DEEPAK GUPTA]
� ....................J.
[ANIRUDDHA BOSE]
NEW DELHI;
August 28, 2019.
4

ITEM NO.103               COURT NO.13               SECTION II-B
               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS
Criminal Appeal  No(s).  205-206/2010
SATISH & ANR. ETC.                                     Appellant(s)
                                VERSUS
STATE OF HARYANA                                Respondent(s)

Date : 28-08-2019  These appeals were called on for hearing today.
CORAM :  HON'BLE MR. JUSTICE DEEPAK GUPTA
          HON'BLE MR. JUSTICE ANIRUDDHA BOSE
For Appellant(s) Dr.  Krishan Singh Chauhan, AOR
Mr. Chand Kiran, Adv.
Mr. S.P. Singh, Adv.
Mr. R.S.M. Kalky, Adv.
Mr. Murari Lal, Adv.
                 
For Respondent(s) Mr. Gautam Sharma, Adv.
Mr. Abhishek Kumar, Adv.
Mr. Tushar Sharma, Adv.
Dr. Monika Gusain, AOR
Mr. Deepak Thukral, Adv.
Ms. Manpreet Kaur, Adv.
                   
         UPON hearing the counsel the Court made the following
                             O R D E R
The   criminal   appeals   are   disposed   of   in   terms   of   the   signed
order.
Pending application, if any, stands disposed of.
(MEENAKSHI  KOHLI)                              (R.S. NARAYANAN)
  COURT MASTER                                    COURT MASTER
[Signed order is placed on the file]
5 

wishing you all a Happy and Merry Christmas
God bless you all with Great Health , Wealth and Prospertiy

                                            with regards
                                          advocatemmmohan

Review is a not a rehearing of the appeal over again. In a review petition, it is not for the Court to re-appreciate the evidence and reach a different conclusion.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
REVIEW PETITION (CRIMINAL) D NO.44603 OF 2019
IN
CRIMINAL APPEAL NOS.609-610 OF 2017
AKSHAY KUMAR SINGH ...Petitioner
VERSUS
STATE (NCT OF DELHI) …Respondent
J U D G M E N T
R. BANUMATHI, J.
This Review Petition has been preferred by the petitioneraccused Akshay Kumar Singh who was the cleaner of the bus to
review the judgment dated 05.05.2017 passed by this Court in
Criminal Appeal Nos.609-610 of 2017 in and by which this Court
confirmed the conviction and death penalty imposed upon the
petitioner by the trial court as well as by the High Court.
2. In the evening of 16.12.2012, the prosecutrix (since
deceased) had gone for a movie with her friend, PW-1. At about
08:45 pm, both the prosecutrix and PW-1 left the movie theatre and
reached Munirka bus stand and they boarded the bus bearing
1
registration No. DL-1PC-0149. This bus was being driven by
accused Ram Singh (since deceased) and the petitioner-Akshay
Kumar Singh @ Thakur was the helper thereof. The accused
misbehaved with the prosecutrix and have committed gang rape of
the prosecutrix in the moving bus. They also committed unnatural
offence and inserted iron rod in the private parts of the prosecutrix.
The accused persons had beaten up PW-1 with iron rods and his
clothes were torn off. The accused also took away all the
belongings of the prosecutrix and PW-1 and thereafter, threw the
prosecutrix and PW-1 in a naked/semi naked condition from the
moving bus. The prosecutrix was treated at Safdarjung Hospital,
Delhi where her three dying declarations were recorded. Since the
condition of the prosecutrix became critical, she was shifted for
further treatment on 27.12.2012 to Mt. Elizabeth Hospital,
Singapore where, she died on 29.12.2012.
3. The trial court held that the complicity and guilt of the accused
were proved and convicted the petitioner and other accused under
Sections 120-B IPC, 376 (2)(g) read with Section 120-B IPC, 377
read with Section 120-B IPC, 365 and 366 read with Section 120-B
IPC, 395 read with Section 120-B IPC, 397 read with Section 120-B
IPC, 302 read with Section 120-B IPC, 307 read with Section 120-B
2
IPC, 412 and 201 read with Section 120-B IPC and inter alia
imposed death penalty upon them. Death penalty and other
sentence of imprisonment imposed upon them was confirmed by
the High Court. The accused had filed Criminal Appeal Nos.609-610
of 2017 before this Court.
4. Criminal appeal filed by the petitioner had earlier been
dismissed by this Court vide its judgment dated 05.05.2017 in
Mukesh and another v. State (NCT of Delhi) and others (2017) 6
SCC 1 on the basis of the following evidence which firmly
established the presence of the petitioner at the scene of the
incident and his involvement in the commission of rape on the
prosecutrix :-
(i) evidence of PW-1/injured eye-witness who spoke about the
occurrence in the bus; PW-1 identified the petitioner in the TIP
conducted on 26.12.2012 as one of the persons who came out of the
driver’s cabin from the bus and started abusing PW-1 and later, took
the prosecutrix to the back side of the bus and raped her;
(ii) three dying declarations of the prosecutrix of which, in the second
dying declaration (ExPW27/A), prosecutrix stated the incident in
detail and that the accused persons were calling “Ram Singh,
Thakur, Raju, Mukesh, Pawan and Vinay and in the third dying
declaration, the prosecutrix wrote the names of the accused “Ram
Singh, Mukesh, Vinay, Akshay, Vipin, Raju” including petitionerAkshay Kumar Singh and other accused;
3
(iii) evidence of PW-81-Dinesh Yadav, owner of the bus in which he has
stated that accused Ram Singh was the driver and petitioner was the
helper in the bus in which the incident occurred;
(iv) Ex.PW71/C, report of PW-71-Dr. Ashith B. Acharaya who opined that
one bite mark found on the prosecutrix could have been possibly
caused by the petitioner; three other bite marks were caused by
accused Ram Singh;
(v) DNA evidence – DNA profile generated from the blood-stained jeans
and banian of the petitioner recovered at the behest of petitioner
matched with the DNA profile of the prosecutrix; another set of DNA
profile generated from jeans pant of the petitioner matched with the
DNA profile of PW-1 and DNA profile generated from breast swab of
the victim which was found consistent with the DNA profile of the
blood of the petitioner;
(vi) recovery of metro card and silver ring of PW-1 recovered at the
behest of the petitioner and identified by PW-1.
5. We have heard Mr. A.P. Singh, learned counsel appearing for
the petitioner-accused No.3. We have also heard Mr. Tushar
Mehta, learned Solicitor General appearing for NCT of Delhi
assisted by Ms. Supriya Juneja, learned counsel.
6. The learned counsel Mr. A.P. Singh had taken us through the
various grounds urged in the review petition and prayed for review
of the judgment. The learned Solicitor General Mr. Tushar Mehta
submitted that the evidence adduced by the prosecution and the
defence plea has been considered threadbare both by the trial
court, High Court and also by this Court. The learned Solicitor
4
General submitted that upon appreciation of evidence, the High
Court and the Supreme Court upheld the findings as to the guilt of
the accused and also the sentence. The learned Solicitor General
also submitted that the very same grounds were raised in the review
petition by the co-accused and the same was dismissed by this
Court vide judgments in Mukesh v. State (NCT of Delhi) (2018) 8
SCC 149 and Vinay Sharma and another v. State (NCT of Delhi)
and others (2018) 8 SCC 186.
7. In this review petition, the petitioner prays for review of the
judgment dated 05.05.2017. In the review petition before us, the
petitioner has again sought to assail the merits of the prosecution
case and the findings rendered thereon which cannot be permitted.
8. It is no longer res integra that scope of review is limited and
review cannot be entertained except in cases of error apparent on
the face of the record. Article 137 of the Constitution of India
empowers the Supreme Court to review any judgment pronounced
or made, subject, of course, to the provisions of any law made by
the Parliament or any rule made under Article 145 of the
Constitution of India. Order XLVII Rule 1 of Supreme Court Rules,
2013 dealing with review reads as follows:-
“1. The Court may review its judgment or order, but no application for
review will be entertained in a civil proceeding except on the ground
5
mentioned in Order 47 Rule 1 of the Code, and in a criminal
proceeding except on the ground of an error apparent on the face of
the record.”
As per the Supreme Court Rules, review in the criminal proceedings
is permissible only on the ground of error apparent on the face of
the record.
9. The jurisdiction of this Court under Article 137 of the
Constitution of India has been clearly stated in Sow Chandra Kante
and Another v. Sheikh Habib (1975) 1 SCC 674, wherein this Court
held as under:-
“A review of a judgment is a serious step and reluctant resort to it is
proper only where a glaring omission or patent mistake or like grave
error has crept in earlier by judicial fallibility. A mere repetition through
different counsel of old and overruled arguments, a second trip over
ineffectually covered ground or minor mistakes of inconsequential
import are obviously insufficient.”
10. Review is a not a rehearing of the appeal over again. In a
review petition, it is not for the Court to re-appreciate the evidence
and reach a different conclusion. The scope of review jurisdiction
has been elaborately considered by this Court in number of cases
and the well settled principles have been reiterated time and again.
In Kamlesh Verma v. Mayawati and Others (2013) 8 SCC 320, the
Supreme Court held as under:-
6
“17. In a review petition, it is not open to the Court to reappreciate the
evidence and reach a different conclusion, even if that is possible.
Conclusion arrived at on appreciation of evidence cannot be assailed in
a review petition unless it is shown that there is an error apparent on the
face of the record or for some reason akin thereto. This Court in Kerala
SEB v. Hitech Electrothermics & Hydropower Ltd. (2005) 6 SCC 654
held as under: (SCC p. 656, para 10)
“10. … In a review petition it is not open to this Court to
reappreciate the evidence and reach a different conclusion, even
if that is possible. The learned counsel for the Board at best
sought to impress us that the correspondence exchanged
between the parties did not support the conclusion reached by
this Court. We are afraid such a submission cannot be permitted
to be advanced in a review petition. The appreciation of evidence
on record is fully within the domain of the appellate court. If on
appreciation of the evidence produced, the court records a finding
of fact and reaches a conclusion, that conclusion cannot be
assailed in a review petition unless it is shown that there is an
error apparent on the face of the record or for some reason akin
thereto. It has not been contended before us that there is any
error apparent on the face of the record. To permit the review
petitioner to argue on a question of appreciation of evidence
would amount to converting a review petition into an appeal in
disguise.”
11. Considering the scope of review under Article 137 of the
Constitution of India and observing that normally in a criminal
proceeding, review applications cannot be entertained except on
the ground of error apparent on the face of the record, in Vikram
7
Singh alias Vicky Walia and Another v. State of Punjab and Another
(2017) 8 SCC 518, the Supreme Court held as under:-
“23. In view of the above, it is clear that scope, ambit and parameters of
review jurisdiction are well defined. Normally in a criminal proceeding,
review applications cannot be entertained except on the ground of error
apparent on the face of the record. Further, the power given to this Court
under Article 137 is wider and in an appropriate case can be exercised to
mitigate a manifest injustice. By review application an applicant cannot
be allowed to reargue the appeal on the grounds which were urged at
the time of the hearing of the criminal appeal. Even if the applicant
succeeds in establishing that there may be another view possible on the
conviction or sentence of the accused that is not a sufficient ground for
review. This Court shall exercise its jurisdiction to review only when a
glaring omission or patent mistake has crept in the earlier decision due
to judicial fallibility. There has to be an error apparent on the face of the
record leading to miscarriage of justice to exercise the review jurisdiction
under Article 137 read with Order 40 Rule 1. There has to be a material
error manifest on the face of the record with results in the miscarriage of
justice.”
12. A review of the judgment is permitted only when it is shown
that judgment suffers from error apparent on the face of the
judgment. In P.N Iswara Iyer and Others v. Registrar, Supreme
Court of India (1980) 4 SCC 680, while considering Order XL Rule 1
of the Supreme Court Rules, 1996, the Constitution Bench of the
Supreme Court observed that Order XL Rule 1 affords the wider set
of grounds for review of orders in civil proceedings, but limits the
8
grounds vis-à-vis criminal proceedings to errors apparent on the
face of the judgment.
13. Applying the above parameters of the review jurisdiction, it is
to be seen whether the petitioner has made out any ground
indicating error apparent on the face of the record warranting review
of our judgment dated 05.05.2017.
14. Even at the outset, it is to be pointed out that the grounds
raised by the petitioner-accused in this review petition are identical
to that of the grounds raised by the co-accused in their review
petitions. Those grounds urged by the co-accused in their review
petitions were considered and rejected by this Court in Mukesh v.
State (NCT of Delhi) (2018) 8 SCC 149 and Vinay Sharma and
another v. State (NCT of Delhi) and others (2018) 8 SCC 186.
15. At this juncture, we would like to point out two grounds raised
by the petitioner in this review petition viz., (i) futility of awarding
death sentence in Kalyug, where a person is no better than a dead
body; and (ii) that the level of pollution in Delhi NCR is so great that
life is short anyhow and everyone is aware of what is happening in
Delhi NCR in this regard and while so, there is no reason why death
penalty should be awarded. According to the petitioner, in view of
the above, he should be spared of the death sentence. We find it
9
unfortunate that such grounds have been raised in the matter as
serious as the present case.
16. The petitioner has also raised the plea that death penalty is
the ultimate denial of human rights and that it violates the right to
life; it also goes against the principle of non-violence. In the review
petition, the petitioner has put forth the general case against the
capital punishment by stating that only the poor and downtrodden
are more likely to be sentenced with death sentence. Such general
contentions put forth against the capital punishment cannot be gone
into in this review petition.
17. The petitioner has raised the plea as to the lack of
professional skills of the investigating agency and the need for an
unbiased investigation. In the petition, general allegations have
been made against the investigating agency alleging extortion of
confession and then create evidence to falsely implicate the
accused. The grounds raised in the petition alleging improper
investigation and manipulation of evidence are too general and not
specific. It is to be pointed out that each and every point raised by
the petitioner-accused assailing the course of investigation was well
considered by the trial court which we have gone through at the
10
time of hearing of the criminal appeals. The same points cannot be
urged again and again.
18. So far as the dying declaration is concerned, the petitioner
has raised the same contention which was raised earlier that is,
according to the petitioner, only the first dying declaration
(Ex.PW49/A) recorded by PW-49-Dr. Rashmi Ahuja where the
prosecutrix has neither named nor mentioned the name of any of
the accused persons, has to be relied upon. Contention of the
petitioner is that the second dying declaration (Ex.PW27/A)
recorded by PW-24-Dr. Usha Chaturvedi, SDM on 21.12.2012 could
not have been recorded as the victim was under the life support and
she could not have given four pages of dying declaration. Further
contention of the petitioner is that the third dying declaration
recorded by PW-30-Pawan Kumar, Metropolitan Magistrate where
the victim has named the petitioner and other accused was a
tutored version and cannot be relied upon.
19. Mr. A.P. Singh, learned counsel appearing for the petitioneraccused has contended that investigation in the present case is
flawed and unreliable. It was submitted that insofar as the recording
of the statement of witnesses under Section 161 Cr.P.C., manner of
arrest of the accused, conduct of test identification parade are
11
doubtful. Various contentions assailing the course of investigation
have been raised both before the trial court as well as before the
High Court and this Court which have been considered threadbare
and were rejected. We do not find any merit in the contention of the
learned counsel for the petitioner assailing the investigation.
20. The learned counsel submitted that because of the media
pressure, the petitioner and other accused have been falsely
implicated. Taking us through the averments made in para 3(f) of
the review petition, the learned counsel submitted that PW-1-
Awninder Pratap Singh had taken heavy amount as bribe and this
has been highlighted in some of the news channels which affect the
credibility of the evidence of PW-1. It was submitted that in this
regard, Heera Lal Gupta, father of co-accused Pawan Gupta had
filed a complaint vide Diary No.26A on 02.11.2019 before SHO, PS
R.K. Puram, Sector-12, New Delhi and also before Deputy
Commissioner of Police, Vasant Vihar. The averments made in
para 3(f) of the review petition are subsequent events unsupported
by any material. In a criminal case, culpability or otherwise of the
accused are based upon appreciation of evidence adduced by the
prosecution and also the evidence adduced by the defence. The
materials or the news emerging in the media and press as also the
12
news channels cannot be taken note of in arriving at a conclusion
on the culpability of the accused or to test credibility of the witness.
Such events cannot be urged as a ground for review.
21. The learned counsel appearing for the petitioner-accused has
taken us through the averments made in para 3(g) of the review
petition and also the clippings of book titled “Black Warrant” written
by Sunil Gupta, a former law officer of Central Jail, Tihar, Delhi who
served long time in Tihar jail. The learned counsel submitted that in
the book written by the above officer, the officer has expressed his
opinion that Ram Singh, accused No.1 was murdered in Tihar jail on
11.03.2013. Here again, the opinion of the said former law officer
Sunil Gupta is only his opinion which is not supported by any
material. If the former law officer had any doubt regarding death of
Ram Singh, the said officer could have offered himself to appear as
a defence witness or he could have filed an affidavit before any of
the courts, either trial court or High Court or before the Supreme
Court. The opinion of the said officer Sunil Gupta which is not
supported by any material, cannot be a ground for reviewing our
judgment.
22. As pointed out in the judgment, there were three dying
declarations recorded from the prosecutrix:-
13
(i) in the first dying declaration (Ex.PW-49/A) recorded by Dr. Rashmi
Ahuja (PW-49) on 16.12.2012 at 11.15 pm, the prosecutrix has
stated that more than two men committed rape on her after which,
she does not remember the sexual intercourse; the prosecutrix also
stated that she was subjected to unnatural sex and she was bitten
over her lips, cheeks and breast;
(ii) in the second dying declaration (Ex.PW-27/A) recorded by PW-27-
Usha Chaturvedi, SDM on 21.12.2012 at 09.00 pm, the prosecutrix
has narrated the entire incident in great detail, specifying the role of
each of the accused, rape committed by number of persons, insertion
of iron rod in her private parts, description of the bus, robbery
committed and throwing of both the victims out of the moving bus in
naked condition. Prosecutrix also stated that the accused were
calling each other “Ram Singh, Thakur, Raju, Mukesh, Pawan and
Vinay”; and
(iii) in the third dying declaration (Ex.PW-30/D) recorded on 25.12.2012
at 1.00 p.m by PW-30-Pawan Kumar, Metropolitan Magistrate by
putting multiple choice questions to the victim and getting answers by
gestures and writing. While giving third dying declaration, prosecutrix
revealed the names of the accused by writing in her own handwriting
viz. “Ram Singh, Mukesh, Vinay, Akshay, Vipin, Raju”.
This Court considered the three dying declarations in the light of the
well-settled principles and found that the multiple dying declarations
inspire the confidence of the Court and are credible. The above
contentions were earlier raised and were considered by this Court in
paras (148) to (164), (186) to (192) and (395) to (417) of the
judgment and rejected. While so, the petitioner cannot raise the
same plea.
14
23. So far as the plea of alibi, contention of the petitioner is that
he was not present in Delhi on the night of 16.12.2012 and that he
accompanied his sister-in-law Sarita Devi (DW-15) along with her
son Kundan. He boarded Mahabodhi Express on 15.12.2012 and
left for Aurangabad, Bihar from Platform No.9, New Delhi Railway
Station. Contention of the petitioner that the evidence adduced by
the petitioner to prove his presence in the Karmalahang, P.S.
Thandva, District-Aurangabad, that is the evidence of DW-1, local
auto driver, DW-12-Sarju Singh who has spoken about the petitioner
reaching his house in his native village on 16.12.2012 and DW-13-
Rajmohan, father-in-law of petitioner and DW-14-Punita Devi, wife
of petitioner who have deposed that the petitioner came to their
house in the native village Karmalahang along with Sarita Devi
(DW-15), would show that the petitioner was not present in Delhi on
the night of 16.12.2012. It was submitted that though the defence
has showed booked ticket details of Mahabodhi Express from New
Delhi to Aurangabad on 15.12.2012 to prove the departure of the
petitioner, this aspect was not appreciated by the court and the
petitioner’s plea of alibi was erroneously turned down.
24. To substantiate the plea of alibi, the petitioner has examined
DW-11-Chavinder, Auto Driver who has taken the petitioner and his
15
family members from Anugrah Narayan Railway Station, DistrictAurangabad, Bihar to his native village, Karmalahang. DW-12-Sarju
Singh, DW-13-Rajmohan, father-in-law of petitioner and DW-14-wife
of the petitioner have spoken about the presence of petitioner in the
village. DW-15-Sister-in-law of petitioner whom the petitioner claims
had accompanied her on 15.12.2012. Considering the evidence of
DWs 12, 14 and 15 in Para (256), this Court has observed that DWs
12, 14 and 15 are all relatives of accused Akshay Kumar Singh alias
Thakur and that as observed by both the courts, they tried to wriggle
the petitioner out of the messy situation as is the natural instinct of
the family members.
25. The plea of alibi taken by the petitioner-accused and the
evidence adduced by the petitioner has been well-considered by
this Court in Paras (247) to (269). Upon appreciation of evidence,
this Court affirmed the findings of the trial court and the High Court
rejecting the plea of alibi and held that plea of alibi taken by the
petitioner is an afterthought. We do not find any error apparent on
the face of the record in consideration of evidence and rejection of
the plea of alibi. The appreciation of evidence in rejecting the plea of
alibi does not suffer from any error apparent on the face of the
record and this cannot be urged as a ground for review.
16
26. The next contention urged by the petitioner is the use of iron
rod and absence of injury to the uterus on the alleged insertion of
the iron rod in the private parts of the victim. Elaborate submissions
were made on the alleged use of iron rod and the same was
rejected by well-considered reasonings in Paras (193) to (209) and
(413) to (422) and the said findings thereon supported by the
opinion of the medical expert do not suffer from any error.
27. The other contentions viz. (i) CCTV footage of Hotel Delhi
Airport was not properly examined; (ii) the bus bearing registration
No.DL-1PC-0149 was falsely implicated; (iii) PW-81-owner of the
bus was in judicial custody for six months before his examination in
the court and he was so detained in custody only to bring pressure
upon him to depose in favour of the prosecution; and (iv) the
petitioner-accused was photographed earlier and the same was
shown to PW-1 to enable him to identify the petitioner-accused in
the test identification parade. These contentions and other
contentions assailing the case of the prosecution were all raised
earlier and upon consideration of evidence, the same were rejected
by this Court. The review petition is not for re-hearing of the appeal
on reappreciation of the evidence over and over again. A party is
17
not entitled to seek review of the judgment merely for the purpose of
rehearing of the appeal and a fresh decision.
28. On the question of award of death sentence, the Court has
considered the aggravating and mitigating circumstances. In Paras
(322) to (368) and (511) to (518) of the judgment, while considering
the question of death sentence, opportunity was granted to the
petitioner accused and also other accused to file their affidavits as
to their family background, criminal antecedents, possibility of
reformation and such other relevant factors. The petitioner accused
through his counsel, Mr. A.P. Singh has filed an affidavit stating his
family background and stating that he has no criminal antecedent
and that his case is not falling under “the rarest of rare cases” to
affirm the death sentence, which contention was considered and
rejected. The aggravating and mitigating circumstance and the
affidavit filed by the petitioner was considered in detail in Para
(324). The contention urged by the counsel for the parties and
learned amicus curiae were considered in paras (327) to (368) and
(511) to (518) of the judgment and the court observed that the
background and family circumstances cannot be taken as the
mitigating circumstances. Considering the manner in which the
offence was committed, in the judgment dated 05.05.2017, this
Court held that the case is falling within “the rarest of rare cases”.
18
We do not find that these findings suffer from any error apparent on
the face of the record. The mitigating circumstances elaborated
upon by the defence by way of highlighting the comparatively young
age of the convicts, their socio-economic background, their
unblemished antecedents and their chances of reformation, fade
into insignificance. In light of the aggravating circumstances and
considering that the case falls within the category of “rarest of rare
cases”, the death penalty is confirmed.
29. Insofar as the submission of learned counsel for the
petitioner-accused that the death penalty has been abolished in UK
and several other Latin American countries and Australian States,
the same contentions were raised by Mr. A.P. Singh in the earlier
review petitions and the same were dismissed. [vide Mukesh v.
State (NCT of Delhi) (2018) 8 SCC 149 and Vinay Sharma and
another v. State (NCT of Delhi) and others (2018) 8 SCC 186]
30. Dismissal of the review petitions filed by the co-accused:
The review petition filed by the co-accused were dismissed as
having no merit, on 09.07.2018 Mukesh v. State (NCT of Delhi)
(2018) 8 SCC 149. The court observed that the submissions urged
by the other accused were already considered while delivering the
19
judgment and were rejected. The same points were earlier raised in
the review petitions filed by other co-accused. The grounds raised in
the present review petition are almost repetition of the arguments
raised in the earlier review petitions which were rejected and in our
view, cannot be raised repeatedly.
31. We do not find any error apparent on the face of the record in
the appreciation of evidence or the findings of the judgment dated
05.05.2017. None of the grounds raised in the review petition call
for review of the judgment dated 05.05.2017. The review petition is
dismissed.
..……………………..J.
 [R. BANUMATHI]
.………………………..J.
 [ASHOK BHUSHAN]
....……………………..J.
 [A. S. BOPANNA]
New Delhi;
December 18, 2019.
20

Government Grants Act 1895= State government formulated a scheme to allow conversion of residential leasehold plots under the GA Department within the area of Bhubaneswar Municipal Corporation into freehold land. The policy, inter alia, contained the following condition: “Lessees who have encroached or unauthorisedly occupied government land anywhere within Bhubaneswar municipal corporation limits would not be eligible to be covered under the scheme unless they vacate the unauthorised occupation.=The submission of an application does not confer a vested right for permission. The applicant must comply with the terms of the policy. One of the terms in the policy in question is that the applicant should not have encroached on government land. An applicant who seeks the benefit of the policy must comply with its terms. In the present case, the policy which was formulated by the State government specifically contained a stipulation to the effect that a lessee, who had encroached upon or unauthorisedly occupied government land anywhere within Bhubaneswar Municipal Corporation limits would not be eligible to be covered by the scheme unless the unauthorised occupation is vacated.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 9521 of 2019
 (Arising out of SLP(C) No 30220 of 2019)
(D No 45004 of 2018)
State of Odisha & Ors .... Appellant(s)

Versus
Bichitrananda Das ....Respondent(s)
J U D G M E N T
Dr Dhananjaya Y Chandrachud, J
1 Delay condoned.
2 Leave granted.
3 This appeal arises from a judgment of a Division Bench of the High
Court of Orissa dated 12 January 2018.
4 On 30 September 1981, a lease of a plot bearing No F/37
admeasuring 75 feet by 100 feet described as Drawing No BS-136 (R)
Mouza-Nayapalli, Bhubaneswar, was granted to the respondent by the
State Government in the General Administration Department1
 for a period
of ninety years under the Government Grants Act 1895. On 18 July 2003,
1 “GA Department”
2
the State government formulated a scheme to allow conversion of
residential leasehold plots under the GA Department within the area of
Bhubaneswar Municipal Corporation into freehold land. The policy, inter
alia, contained the following condition:
“Lessees who have encroached or unauthorisedly occupied government
land anywhere within Bhubaneswar municipal corporation limits would
not be eligible to be covered under the scheme unless they vacate the
unauthorised occupation.
5 On 15 September 2003, the respondent applied for conversion of the
leasehold plot to freehold. In response to the application, the Revenue
Inspector in the GA Department recorded on 22 November 2003 that:
“Order on the above file I have visited to the site of Drawing Plot No. N/4-
37/F (75x100). Drawing No.BS-136 (R), Nayapalli, corresponding to the
1991-92 Final Settlement Revenue Plot No. 100/3090 Area ACO. 172
under Khata no.1020 n Unit XVI, MZ – Jayadev Vihar and Board, two
storied building has been constructed as per approval building plan. But
lessee has encroached Govt. land (which was kept as open space) in
front of the plot, 60 x 63, by way of illegible fence and Garden. Lessee
may be asked to vacate the encroachment.” (Emphasis supplied)
6 On 13 May 2004, the respondent was directed by the Land Officer in
the GA Department to vacate the area of unauthorised occupation,
recording thus:
“In inviting a reference to the subject cited above, I am directed to say
that during the field enquiry it has come to the notice that you have
unauthorizedly occupied Govt. Land measuring 60’ x 63’ by covering
barbed wire fencing and using the same for garden purpose.
You are therefore, requested to vacate the above land immediately and
report compliance within 15 days for consideration of your conversion
application.” (Emphasis supplied)
3
7 Four years later, On 6 August 2008, the respondent addressed a
communication to the Land Officer with reference to the letter dated 13
May 2004, stating that he had already sent a reply on 19 April 2006, a copy
of which was enclosed stating that there existed no barbed wire fencing
and “no encroachment now exists”. The letter dated 19 April 2006,
however, contained a statement that:
“But I am told that in a communication (not received by me) I have been
asked to vacate a portion of Government land reportedly occupied by me
unauthorisedly with barbet wire fencing.” (Emphasis supplied)
Hence, though in his letter dated 6 August 2008, the respondent stated
that he had already furnished a reply on 19 April 2006 to the letter dated 13
May 2004, meaning thereby, that the letter dated 13 May 2004 was in
possession of the respondent when he submitted the reply, the purported
letter dated 19 April 2006 suggested that the communication had not been
received. Be that as it may, on 21 December 2009, the respondent wrote
a letter to the Directorate of Estates stating that no barbed wire fencing or
encroachment existed at present around his plot. On 28 December 2009,
proceedings were initiated against the respondent by issuing a notice
under Section 4(1) of the Orissa Public Premises (Eviction of Unauthorized
Occupants) Act 19722
. By the notice, the respondent was called upon to
show cause as to why an order of eviction should not be made.
8 Subsequently, on 30 June 2010, in response to a representation
dated 21 December 2009, the GA Department was directed to re-enquire.
On 30 June 2010, the following position was indicated upon verification:
2 “Act”
4
“Verified the land bearing training Plot No. N-4/F-37 of MT Jayadevihar
Unit No. 16 and on field verification the encroachment reported earlier
has not been vacated now.” (Emphasis supplied)
9 On 11 November 2010, the respondent once again sought a decision
on his application for conversion, stating that:
“I have responded to the above objection clearly indicating that the
reported encroached area is completely outside my pucca compound
wall. This area is not covered with any barbed wire fencing as alleged.
There is no construction whatsoever. The area is covered with some
green plantation. Moreover the vacant area is always available to G.A.
Department” (Emphasis supplied)
10 On 23 February 2011, the Land Officer in the GA Department visited
the site and submitted a report that there was no barbed wire fencing on
the encroached site, but that the respondent had put up a temporary
fencing and a small iron grill gate for access to the encroached area. On 2
August 2013, the respondent once again sought conversion to freehold.
On 2 September 2013, the respondent was directed to file a declaration, in
a communication of the Deputy Secretary to the Government, GA
Department which read as follows:
“In inviting a reference to your application dated 02.08.2013, I am
directed to inform you that, you are required to file a registered
declaration to the effect that, you have not fenced the Govt. land in front
of your lease plot. You should indicate the declaration that, you would
not claim long possession on the said land even after conversion is
allowed. The sketch map of the said land is enclosed herewith for
preparing the declaration. Your request for conversion will be
considered only after submission of the said declaration.”
 (Emphasis supplied)
11 On 22 March 2014, the competent officer in the GA Department
submitted a report indicating the following position at the site:
Lessee Sri B.N. Das has made compound wall over his allotted land and
one, single storied RCC building exist over the said land. Lessee with
5
his family is residing there in residential purposes.
Earlier reported regarding encroachment reveals that there is no barbed
fence now. Only open plantation exists over Government land available
in between road and allottee’s plot. The said plantation may not be
treated as encroachment. Copy of photograph is enclosed herewith for
reference.” (Emphasis supplied)
Consequently, the conversion fee was recomputed.
12 Eventually, on 9 April 2014, the Director of Estates called upon the
respondent to submit an affidavit that he had not encroached on
government land nor would he claim possession in future. The respondent
submitted an affidavit on 21 April 2014. Consequently, permission was
granted on 5 May 2014 for conversion of the land from leasehold to
freehold, conditional on a deposit of an amount of Rs 13,25,758.
13 The respondent moved a writ petition3
 before the High Court of Orissa
challenging the communications dated 5 May 2014 and 9 December 2014
(the latter having rejected the plea of the respondent for recomputing the
conversion fees on the basis of the rate prevalent in 2003). A counter
affidavit was filed by the State. The High Court, by its impugned judgment
and order, allowed the writ petition and directed the State to recompute the
conversion fees as on the date of the making of the application on 15
September 2003.
14 Aggrieved by the direction of the High Court, the State is in appeal
before us.
3W P (C) No 8159 of 2015
6
15 Mr V Giri, learned senior counsel appearing on behalf of the
appellants, submitted that the rates chargeable for the conversion from
leasehold to freehold would be those which govern on the date when the
application has been decided. Learned counsel relied on the decision of
this Court in Chennai Metropolitan Developoment Authority v Prestige
Estates Project Ltd4
. Mr Giri submitted that as the record would indicate
in the present case, an encroachment had been made by the respondent
adjacent to his leasehold plot and, in terms of the applicable policy, the
respondent was required to remove the encroachment. It was urged,
relying on the correspondence which has been referred to above, that the
respondent responded to the communication dated 13 May 2004 only on 6
August 2008 and that the purported communication dated 19 April 2006
appears to be an ante-dated document. Be that as it may, it was urged
that as a matter of principle it was not open to the respondent to claim that
the conversion charges be computed on the basis of the rate prevalent on
the date of the application. The application for conversion could be
considered only in terms of the policy frame by the government and one of
its conditions was that the applicant should not be in unauthorized
occupation of government land.
16 On the other hand, it has been urged by Mr Santosh Raut, learned
counsel appearing on behalf of the respondent that, as a matter of fact, the
case of the respondent was that there was no encroachment whatsoever
on the land, which was clarified in the letters dated 19 April 2006 and 6
August 2008. Learned counsel submitted that, at the highest, only a
4 2019 SCC OnLine SC 931
7
plantation had been made outside the leasehold plot and this could not
have been treated as an encroachment. Hence, it was urged on behalf of
the respondent that where the State had taken an inordinately long time to
consider the application, there was no justification or reason to saddle the
respondent with the increased rates which were payable as on the date on
which the decision was ultimately taken. Hence, it was further urged that
the High Court was correct in coming to the conclusion that the rate as on
the date of the application must be the governing rate for computing the
conversion charges.
17 In the recent decision of this Court in Chennai Metropolitan
Developoment Authority (supra), this Court relied upon a line of
precedents emanating from the Court, including the decisions in State of
Tamil Nadu v Hind Stone5 and Howrah Municipal Corporation v
Ganges Rope Co Ltd6
. The submission of an application does not confer
a vested right for permission. The applicant must comply with the terms of
the policy. One of the terms in the policy in question is that the applicant
should not have encroached on government land. An applicant who seeks
the benefit of the policy must comply with its terms. In the present case,
the policy which was formulated by the State government specifically
contained a stipulation to the effect that a lessee, who had encroached
upon or unauthorisedly occupied government land anywhere within
Bhubaneswar Municipal Corporation limits would not be eligible to be
covered by the scheme unless the unauthorised occupation is vacated.
5 (1981) 2 SCC 205
6 (2004) 1 SCC 663
8
18 The record shows that on 13 May 2004, the Land Officer informed the
respondent that he was unauthorisedly in occupation of land admeasuring
60’ x 63’ which had been covered by barbed wire fencing, which was being
used for the purpose of a garden. The respondent addressed a
communication on 6 August 2008, stating that he had already replied to the
letter dated 13 May 2004 on 19 April 2006. The letter dated 19 April 2006
is carefully worded and states that “no barbed wire fencing and “no
encroachment now exists”. Interestingly, a copy of the earlier letter dated
19 April 2006 was annexed to the communication dated 6 August 2008.
However, the purported letter dated 19 April 2006 contains a statement
that the respondent had been told that in a communication, which had not
been received by him, he had been asked to vacate a portion of the
government land, which had been occupied unauthorisedly with a barbed
wire fencing. The contents of the letter dated 6 August 2008 do not square
up with the purported communication dated 19 April 2006. Be that as it
may, it is evident from the communications that it was his case that no
encroachment existed “at present”. Eventually, a notice to show cause
had to be issued to the respondent under the Act on 28 December 2009.
The State has placed on record a copy of the inspection report of 30 June
2010 which indicates that the encroachment had not been vacated. It was
in this view of the matter that the State called upon the respondent to
furnish a declaration that the encroachment had been removed and that he
would not claim possession of the adjacent land even after conversion was
allowed. Eventually, on 22 March 2014, it was stated that while an open
plantation existed over the land, the plantation may not be treated as an
9
encroachment.
19 In this background, we are of the view that there was no justification
for the High Court to direct that the rate for the computation of conversion
charges should be that which was applicable on the submission of an
application on 15 September 2003. The application for conversion from
leasehold to freehold must necessarily be consistent with and compliant to
the governing provisions of the policy which has been framed by the State
government. Unless compliance is effected, there is no right to claim
conversion of the land to freehold. Consequently, we are of the view that
the High Court was in error in directing the State to recompute the
conversion charges as on 15 September 2003. The respondent would
necessarily have to pay the conversion charges on the date when a final
decision was taken after due verification that there was no encroachment
and after scrutinizing the declaration which was filed by the respondent.
20 A period of nearly twelve years has elapsed in the meantime. It is
significant that the respondent moved the writ proceedings before the High
court only in 2015. If the grievance of the respondent was that the State
had not taken any action on his representations, he ought to have moved
the writ proceedings at an earlier point of time seeking a decision on his
application. Having himself waited until 2015 to seek a declaration from
the High Court, the respondent cannot claim that the conversion charges
should be fixed as on the date of the application, namely, 15 September
2003.
10
20 For the above reasons, we allow the appeal and set aside the
impugned judgment and order of the High Court. The writ petition filed by
the respondent shall stand dismissed. However, we direct that in the event
that the respondent complies with the directions contained in the
communication of the State government by which the conversion charges
were computed and makes the necessary payment, the application shall
be processed expeditiously so as to facilitate the grant of conversion of the
land from leasehold to freehold. There shall be no order as to costs.
 …………...…...….......………………........J.
 [Dr Dhananjaya Y Chandrachud]
…..…..…....…........……………….…........J.
 [Hrishikesh Roy]
New Delhi;
December 18, 2019
11
ITEM NO.15 COURT NO.8 SECTION XI-A
 S U P R E M E C O U R T O F I N D I A
 RECORD OF PROCEEDINGS
SPECIAL LEAVE PETITION (CIVIL) Diary No(s). 45004/2018
(Arising out of impugned final judgment and order dated 12-01-2018
in WPC No. 8159/2015 passed by the High Court of Orissa at Cuttack)
THE STATE OF ODISHA & ORS. Petitioner(s)
 VERSUS
BICHITRANANDA DAS Respondent(s)
(WITH IA No. 22402/2019 - CONDONATION OF DELAY IN FILING, IA No.
22403/2019 - CONDONATION OF DELAY IN REFILING / CURING THE
DEFECTS, IA No. 22404/2019 - EXEMPTION FROM FILING C/C OF THE
IMPUGNED JUDGMENT)
Date : 18-12-2019 This petition was called on for hearing today.
CORAM : HON'BLE DR. JUSTICE D.Y. CHANDRACHUD
 HON'BLE MR. JUSTICE HRISHIKESH ROY
For Petitioner(s) Mr. V. Giri, Sr. Adv.
Mr. Suvendu Suvasis Dash, AOR
Ms. Swati Vaibhav, Adv.
Mr. Nabab Singh, Adv.

For Respondent(s) Mr. Santosh Raut, Adv.
 Mr. Vishwa Pal Singh, AOR
Mr. Rajendra Prasad, Adv.
Ms. Pallavi, Adv.
UPON hearing the counsel the Court made the following
 O R D E R
Delay condoned.
Leave granted.
The appeal is allowed in terms of the signed
reportable judgment. There shall be no order as to costs.
Pending application, if any, stands disposed of.
 (SANJAY KUMAR-I) (SAROJ KUMARI GAUR)
 AR-CUM-PS COURT MASTER
(Signed reportable judgment is placed on the file)

Nirbhaya Fund = (1) whether Courts are recommending the District Legal Service Authority or the State Legal Service Authority for compensation in appropriate cases? (2) whether the amount of interim or final compensation is being provided to the victims in time bound manner? (3) whether the above-mentioned Scheme of 2018 or suitably amended Scheme, has been implemented by the states for rehabilitation of victims of rape? 17 (4) whether the SLSA or NLSA has formulated any scheme for social, medical and economic rehabilitation of the victim? (5) whether any state has prepared a policy with regard to the counselling of the victim and medical, social and in some cases, economic rehabilitation of the victim? (6) whether there are any counselling/rehabilitation centres in existence for the victims of rape?

1
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
SMW (CRL.) No(s).04 OF 2019
IN RE : ASSESSMENT OF THE CRIMINAL
JUSTICE SYSTEM IN RESPONSE TO
SEXUAL OFFENCES Petitioner (s)
VERSUS
Respondent (s)
O R D E R
1. Post Nirbhaya incident, which shocked the conscience
of the nation, many amendments were introduced in criminal
law redefining the ambit of offences, providing for
effective and speedy investigation and trial. Still, the
statistics would reveal that desired results could not be
achieved. As per the latest report of National Crime
Records Bureau of Crime in India in the year 2017, total
32,559 cases of rape were registered in India.
2. The delay in such matters has, in recent times,
created agitation, anxiety and unrest in the minds of the
people. The Nirbhaya case is not an isolated case where it
has taken so long to reach finality. In fact, it is said
2
that it has been one of the cases where agencies have acted
swiftly taking into account the public outrage.
3. We are, therefore, of the view that it is necessary to
take stock of the implementation of provisions of criminal
law, including the said amendments, relating to rape cases
and other sexual offences. It is necessary to call for
information with regard to status of affairs at ground
level from various dutyholders like investigation agencies,
prosecution, medico-forensic agencies, rehabilitation,
legal aid agencies and also Courts to get a holistic view
to make criminal justice system responsive in the cases of
this nature.
4. The criminal law is set into motion by registration of
the FIR. Section 154 of the Cr.P.C. provides about the
information in cognizable cases and in effect registration
of First Information Reports. The first Proviso to the subSection (1) of Section 154 inserted by the Amendment Act of
2013 and subsequently amended by the Amendment Act of 2018,
provides for registration of First Information Report in
cases of rape and sexual offences by a woman police officer
or any woman officer. It is further provided that if the
victim is temporarily or permanently mentally or physically
disabled, the first information shall be recorded by a
police officer, at the residence of the person seeking to
report such offence or at a convenient place of such
3
persons choice, in the presence of a special educator or an
interpreter and the recording of such information may be
videographed. It is also provided that the police officer
shall get the statement of such person recorded by a
Judicial Magistrate under Section 164, as soon as possible.
5. As law laid down in the case of Lalita Kumari v.
Government of U.P., (2014) 2 SCC 1, the police is dutybound
to register the offence based upon the information given by
the victim/informant in case of cognizable offence.
In addition to this, the statements of the victim
under Section 161 are required to be recorded by a woman
police officer or any woman officer.
Thus, we consider it appropriate to call for status
report with regard to the following: -
(1) whether all the Police Stations have a woman
police officer or woman officer to record the
information of the victim?
(2) In case, an information relating to offence of
rape received at a Police Station, reveals that
the place of commission of the offence is beyond
its territorial jurisdiction, whether in such
cases FIR without crime number are being
recorded?
(3) whether provisions are available for recording of
first information by a woman police officer or a
4
woman officer at the residence of the victim or
any other place of choice of such person in case
the victim is temporarily or permanently mentally
or physically disabled?
(4) whether all the District Police Units have the
details of special educator or an interpreter in
case of a mentally or physically disabled victim?
(5) whether the police department of states or union
territories have issued any circulars to make
provision of videography of the recording of
statements and depository of the same?
(6) whether any state has published guidelines in the
shape of Standard Operating Procedure (SOP) to be
followed for responding after receipt of the
information relating to case of rape and similar
offences?
6. By the Amendment Act of 2013, a new provision of
Section 166A made the failure of a public servant to record
any information of such offences, as prescribed, under subSection 1 of Section 154 of the Cr.P.C., a punishable
offence, prescribing both rigorous imprisonment and fine
for the guilty.
Thus, we consider it appropriate to call for status
report with regard to the following:-
(1) whether any case has been registered under the
Section 166A of IPC against any public servant?
5
(2) whether there is any mechanism in place to
complain about the non-recording of information
by the officer giving cause to offence under
Section 166A with any other institution/office,
other than the concerned police station?
7. Medical treatment and examination of the victim is a
very important aspect not only for the immediate relief to
the victim but also provides intrinsic evidences for the
trial. Amendments in this regard have been inserted by the
Amendment Acts of 2013 and 2018, whereby the newly
introduced Section 357C of Cr.P.C. has sought to fix
liability on medical institutions, both public or private
to provide medical treatment free of cost to the victims of
such offences as prescribed, together with a duty to inform
the police of such incident. Failure to comply with the
above provision has also been made an offence punishable
under Section 166B of IPC.
Thus, we consider it appropriate to call for status
report with regard to the following:-
(1) whether any advisory or guidelines have been
issued by the authorities to all the hospitals
and medical centres in this regard?
(2) whether any case has been registered against any
person under Section 166B of IPC?
8. The manner in which the medical report of the victim
is prepared is also a matter of concern. The Amendment Act
6
of 2013 has inserted a new provision, i.e. Section 164A in
this regard, which provides for the manner of medical
examination as well as the guidelines for preparation of
medical report. Other than the above information, many a
times valuable information in consonance with the
definition of rape as amended by the Act of 2013 are not
supplied.
9. Also, vide the Amendment Act of 2013, Section 53A was
inserted in the Evidence Act, 1872. It provides that the
evidence of character of the victim and of such person’s
previous sexual experience with any persons shall not be
relevant on the issue of such consent or the quality of
consent. The effect of above provision is that previous
sexual experience and in effect the habituation to sexual
intercourse is now irrelevant for the purpose medical
examination. Still, we come across the medical opinion
such as “the victim is habitual of sexual intercourse” and
the opinion suggesting possibility of consent on the basis
of her previous sexual exposure.
10. The Ministry of Health and Family Welfare, Government
of India had prepared “Guidelines & Protocols: Medicolegal care for survivors/victims of sexual violence”.
11. The Ministry of Women and Child Development has
designed a Medical Kit for examination of the victim and
the accused in cases of rape. The Union Government and the
7
State Government have not provided this medical kit to all
the Primary Health Centers or Community Health Centers.
This Medico Forensic Kit is essential for collection of
Medical/DNA evidence.
12. Further, Per-Vaginum examination commonly referred to
as 'Two-finger test' has been held to be of no consequence
and violative of the dignity of woman. In the case of
Lillu alias Rajesh and Anr. v. State of Haryana, (2013)
14 SCC 643 it was observed as follows:-
“In view of International Covenant on
Economic, Social, and Cultural Rights
1966; United Nations Declaration of Basic
Principles of Justice for Victims of
Crime and Abuse of Power 1985, rape
survivors are entitled to legal recourse
that does not re-traumatize them or
violate their physical or mental
integrity and dignity. They are also
entitled to medical procedures conducted
in a manner that respects their right to
consent. Medical procedures should not be
carried out in a manner that constitutes
cruel, inhuman, or degrading treatment
and health should be of paramount
consideration while dealing with genderbased violence. The State is under an
obligation to make such services
available to survivors of sexual
violence. Proper measures should be taken
to ensure their safety and there should
be no arbitrary or unlawful interference
with his privacy.
Thus, in view of the above,
undoubtedly, the two-finger test and its
interpretation violates the right of rape
survivors to privacy, physical and mental
integrity and dignity.”
8
Thus, we consider it appropriate to call for status
report with regard to the following:-
(1) whether the Medical Opinion in the cases relating
to rape and similar offences is being given in
compliance with the mandate of Section 164A of
Cr.P.C.?
(2) whether the Medical Opinion in the cases relating
to rape and similar offences is being given in
tune with definition of rape under Section 375 of
IPC as it stands today?
(3) whether the states have adopted the Guidelines &
Protocols of The Ministry of Health and Family
Welfare, Government of India or have they
prepared their own Guidelines & Protocols?
(4) whether requisite Medico-forensic kit are
available with all the hospitals/health centres
run by the Government or by local authorities?
(5) whether the medical experts have done away with
the Per-Vaginum examination commonly referred to
as 'Two-finger test' and whether any directions
have been issued by the states in this regard?
(6) whether medical experts have done away with the
practice of giving opinion on the previous sexual
experience of the victim or any directions have
been issued by the states in this regard?
9
(7) whether lady medical practioners, if mandated,
are available at all district and sub-divisional
headquarters to draw up the medical examination
report of the victim?
13. Forensic examination and report play an important role
during the investigation as well as trial for linking the
culprit with the crime. With the advancement of the DNA
science and its accuracy, the sampling for the purpose of
Forensic examination and expeditious reports after due
examination are vital to the just adjudication of the case.
The sampling for the purpose of DNA test as well other
forensic tests like forensic odontology is essential in
cases relating to rape.
14. In relation to the examination of the accused, Section
53A of Cr.P.C. provides for timely examination and guidance
for preparation of medical report.
Thus, we consider it appropriate to call for status
report with regard to the following: -
(1) whether there is any Standard Operating Procedure
(SOP) or Protocol for taking samples for Forensic
DNA, Forensic odontology and other forensics for
Medical Practitioners?
(2) whether there are adequate number of equipped
Forensic Laboratories at least one at every
10
Division Level to conduct forensic DNA and
Forensic odontology analysis regionally?
(3) subject to availability, whether Central
Government has notified sufficient number of
Government scientific expert other than already
specified under Section 293 of Cr.P.C.?
15. Section 173 (1A) Cr.P.C. provides that the
investigation in relation to an offence under Section 376,
376A, 376AB, 376B, 376C, 376D, 376DA, 376Db or 376 E of the
Indian Penal Code (45 of 1860) shall be completed within
two months from the date on which the information was
recorded by the police officer in charge of the Police
Station.
Thus, we consider it appropriate to call for status
report with regard to the following:-
(1) whether police is completing the investigation and
submitting the final report within a period of two
months from the date of recording of information
of the offence and if no, reasons for delay?
(2) whether sufficient number of women police officers
are available to conduct investigation into the
offences relating to rape and other sexual
offences?
16. Sub-Section (5A) of Section 164, Cr.P.C. provides for
recording of statement of the victim by the Court. Other
11
than recording of statements under Section 164, for the
purpose of recording of statements during the trial,
Section 119 of Evidence Act provides for assistance of an
interpreter or a special educator in recording the
statement of the witness unable to speak but capable to
give evidence in any other manner. It further provides
that such statement shall be video graphed.
Thus, we consider it appropriate to call for status
report with regard to the following:-
(1) whether the police is taking the victim for
recording of the statements as soon as the
commission of the offence is brought to the
notice of police?
(2) whether the Magistrate Courts or the trial courts
have the availability of the interpreter or
special educator in each Districts?
(3) whether the Magistrate Courts or the trial Courts
have the facility of videography of the
statements and depository of the same in the
Courts?
17. Section 26 clause (a)(iii) of Cr.P.C. provides for
trial of such offences to be conducted by a Court presided
over by a woman judge, as far as practicable. Further,
Second proviso to sub-Section 327(2) of Cr.P.C. also
mandates that in camera trial shall be conducted, as far as
12
practicable, by a woman Judge or Magistrate. It must be
noted that the insertion of the above proviso has a very
important object and the rider of “as far as practicable”
cannot be used to overcome the mandate in ordinary manner.
18. The need for speedy trial of the cases relating to
offence of rape has been emphasized again and again this
Court. The proviso to sub-Section (1) of Section 309
mandates that the inquiry of trial shall, as far as
possible, be completed within a period of two months from
the date of filing of the charge-sheet.
Thus, we consider it appropriate to call for status
report with regard to the following: -
(1) whether trial of cases relating to rape are being
conducted by Courts presided over by a woman?
(2) whether sufficient number of lady judges are
available to preside over the Courts dealing with
sexual offences and rape?
(3) whether all courts holding trial of cases
relating to offence of rape have requisite
infrastructure and are conducting in camera
trial?
(4) whether the trial relating to cases of rape is
being completed within a period of two months
from the date of filing of charge-sheet, if not,
the reasons for the delay? 
13
(5) whether sufficient number of special Courts have
been established to deal exclusively with the
cases of rape and other sexual offences?
19. Under Section 230 of Cr.P.C., a trial program is
generally prepared on the application of the prosecution.
This Court in the case of State of Kerala v. Rasheed, AIR
2019 SC 721 has held as followings:-
“The following practice guidelines should
be followed by trial courts in the
conduct of a criminal trial, as far as
possible:
i. a detailed case-calendar must be
prepared at the commencement of the trial
after framing of charges;
ii. the case-calendar must specify the
dates on which the examination-in-chief
and cross-examination (if required) of
witnesses is to be conducted;
iii. the case-calendar must keep in view
the proposed order of production of
witnesses by parties, expected time
required for examination of witnesses,
availability of witnesses at the relevant
time, and convenience of both the
prosecution as well as the defence, as
far as possible;
iv. testimony of witnesses deposing on
the same subject matter must be
proximately scheduled;
v. the request for deferral under Section
231(2) of the Cr.P.C. must be preferably
made before the preparation of the case
calendar;
vi. the grant for request of deferral
must be premised on sufficient reasons
justifying the deferral of crossexamination of each witness, or set of
witnesses;
vii. while granting a request for
deferral of cross-examination of any
14
witness, the trial courts must specify a
proximate date for the cross-examination
of that witness, after the examinationin-chief of such witness(es) as has been
prayed for;
viii. the case-calendar, prepared in
accordance with the above guidelines,
must be followed strictly, unless
departure from the same becomes
absolutely necessary;
ix. in cases where trial courts have
granted a request for deferral, necessary
steps must be taken to safeguard
witnesses from being subjected to undue
influence, harassment or intimidation.”
Thus, we consider it appropriate to call for status
report with regard to the following: -
(1) whether case-calendar as envisaged in the
Rasheed case is being prepared by the Trial
Courts keeping in mind the time line of two
months mandated by Section 309 of Cr.P.C.?
(2) whether the attendance of the witnesses is being
ensured by the Prosecution to ensure the
examination of witnesses on the fixed dates?
(3) whether any guidelines have been issued by Bar
Councils or Associations urging the Advocates to
assist the Court in completion of trial within
the stipulated period?
(4) whether special exclusive permanent trial courts
have been created in the state to deal with cases
relating to rape and sexual assaults?
15
(5) whether any High Court has constituted Special
Bench for expeditious hearing of appeal in these
cases?
20. The protection of witness during the investigation and
trial is essential in cases of this sensitive nature. Many
a times the accused live in proximity of the victim. The
possibility of tampering with evidence and pressurizing the
witness affects fair trial.
Thus, we consider it appropriate to call for status
report with regard to the following:-
(1) whether any policy of victim/witness protection
in the cases relating to rape is framed and
implemented?
(2) whether police protection is being provided to
the victim during investigation and trial of the
offence?
(3) whether there are special waiting room in the
Court premises for victim/witnesses of cases
relating to offence rape?
(4) whether the trial Courts have taken appropriate
measures to ensure that victim woman is not
confronted by the accused during the trial as
mandated by Section 273 Cr.P.C.?
21. Section 357A(2) Cr.P.C. provides for award of
compensation to the victims. The District Legal Service
16
Authority or the State Legal Service Authority are bound to
decide as to the quantum of compensation to the victim on
the recommendation of the Court. By the order of this Court
in W.P. (C) 565/2012 titled Nipun Saxena v. Union of India,
the National Legal Services Authority, New Delhi had
prepared a Compensation Scheme for Women Victims/Survivors
of Sexual Assault/other Crimes – 2018. This scheme has been
circulated among all states for necessary actions. The
Scheme comprehensively provides for the rehabilitation and
compensation for the victims of Rape.
22. As the victim goes through a mental trauma and
requires immediate counselling, legal aid and medical,
social and in some cases, economic rehabilitation.
Thus, we consider it appropriate to call for status
report with regard to the following: -
(1) whether Courts are recommending the District
Legal Service Authority or the State Legal
Service Authority for compensation in appropriate
cases?
(2) whether the amount of interim or final
compensation is being provided to the victims in
time bound manner?
(3) whether the above-mentioned Scheme of 2018 or
suitably amended Scheme, has been implemented by
the states for rehabilitation of victims of rape?
17
(4) whether the SLSA or NLSA has formulated any
scheme for social, medical and economic
rehabilitation of the victim?
(5) whether any state has prepared a policy with
regard to the counselling of the victim and
medical, social and in some cases, economic
rehabilitation of the victim?
(6) whether there are any counselling/rehabilitation
centres in existence for the victims of rape?
23. In the year 2013, a separate fund namely Nirbhaya Fund
for projects of women safety to support initiatives by
government and NGOs was created, and it is important to
inform ourselves how far has the purpose of setting up the
fund been achieved.
Thus, we consider it appropriate to call for status
report with regard to the following: -
(1) Utilization of the Nirbhaya Fund by Central or
State Government(s) for the purposes envisioned?
24. Let the matter be registered as Suo Motu Writ Petition
Criminal with the caption “Assessment of the Criminal
Justice System in response to Sexual Offences”.
25. In order to collate all the information and status and
provide a holistic view of implementation of provisions of
law and to suggest measures for making the criminal justice
system more efficacious and responsive towards the offence
18
of rape and other sexual offences, we request Shri Sidharth
Luthra, Senior Advocate to assist the Court as Amicus
Curiae in the matter.
26. The learned Solicitor General is requested to extend
all co-operation to the Amicus Curiae in this regard.
27. The Secretary General, Supreme Court of India shall
also extend co-operation in respect of calling for
information and status reports from the Chief Secretary and
the Director General of Police of all the States, the
Registrar General of all the High Courts and other
functionaries, as may be required.
Let the matter be listed on 07.02.2020.
……………………………………CJI
 [ S.A. BOBDE ]
………………………………………J.
 [ B.R. GAVAI ]
………………………………………J.
 [ SURYA KANT ]
New Delhi
December 18, 2019

Doctors guilty of medical negligence, since they failed to carry out the mandatory check up of Retinopathy of Prematurity (“ROP”) on Respondent No.1- Master Rishabh, who was a pre-term baby, which led to his total blindness.=The grant of compensation to remedy the wrong of medical negligence is within the realm of law of torts. It is based on the principle of restitutio in integrum. The said principle provides that a person is entitled to damages which should as nearly as possible get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong. = In conclusion, we pass the following directions to secure the interest and welfare of Respondent No.1. These directions are being passed to ensure that the compensation received is utilized for the welfare of Respondent No.1, to enable him to acquire suitable education and equip him to become selfreliant. We direct that the compensation of Rs. 76,00,000/- awarded to the Respondent No.1- Master Rishabh Sharma s/o Mrs. Pooja Sharma (in C.A. No. 6619 of 2016), be utilized in the following manner: a) Rs. 60,00,000/- (Rupees Sixty Lacs Only) is allocated exclusively for Respondent No.1- Master Rishabh Sharma for his education, welfare, and sustenance; b)Rs. 15,00,000/- (Rupees Fifteen Lacs Only) is allocated to Mrs. Pooja Sharma, the mother of Master Rishabh Sharma, as his care-giver, after deduction of an amount of Rs.5,00,000/- already disbursed to her.; c) Rs. 1,00,000/- (Rupees One Lac Only) is awarded towards litigation costs, payable to Mr. Jai Dehadrai, Advocate and 67 Mr. Sidharth Arora, Advocate, who have represented the Complainants on a pro bono basis (as stated by them) in this Court. 11.5.7 The amount of Rs. 60,00,000/- awarded to Master Rishabh Sharma shall be disbursed in the following manner: A. Rs. 50,00,000/- be deposited in a Five Years’ Post Office Time Deposit Scheme in the name of Master Rishabh Sharma with Mrs. Pooja Sharma as his natural guardian. Let five deposits in multiples of Rs. 10,00,000/- each be made. The deposits shall be opened in the Post Office Savings Bank Account of the Supreme Court Post Office, New Delhi. The account shall be operated by Mrs. Pooja Sharma under the supervision of the concerned Registrar of this Court. The aforesaid five deposits aggregating to Rs.50,00,000/- will fetch Master Rishabh Sharma an annual interest income of Rs.3,85,000/, which will be credited into a Savings Account with the Post Office. Out of the said sum, Rs.1,50,000/- shall be invested annually in a 15 Year Public Provident Fund 68 (“PPF”) Account to be opened in the name of Master Rishabh Sharma with UCO Bank, Supreme Court, Tilak Marg, New Delhi. These yearly investments, going by the provisions of the Income Tax Act, 1961, will be tax free. After having invested Rs.1,50,000/- every year in a PPF account, the rest of the yearly income amounting to Rs.2,35,000/- p.a. (from and out of Rs.3,85,000/-) which is equivalent to about Rs.20,000/-per month, shall be utilized by Respondent No.2- Mrs. Pooja Sharma for the education and upbringing of Respondent No.1. B. Rs.4,50,000/- shall be deposited in a Five Year Post Office Monthly Income Scheme Account (“MIS Account”) with the Supreme Post Office in the name of Master Rishabh Sharma so that it will give him monthly interest of 7.6% p.a., that is to say Rs.2,850/- per month, which shall be utilized by his Mrs. Pooja Sharma primarily for the upbringing of Respondent No.1. 69 C. The balance of Rs. 5,50,000/- from the amount deposited by the Appellants, shall be invested in a Five Year Fixed Deposit Account (“FD Account”) to opened with UCO Bank, Supreme Court, Tilak Marg, New Delhi in the name of Master Rishabh Sharma. The interest accruing therefrom may be utilized by Mrs. Pooja Sharma in such manner as is deemed appropriate. D. These investments will ensure an annual income of approximately Rs. 4,50,000/-. With the investment of Rs. 1,50,000/- in a PPF Account, which will be tax free, as the annual income of Rs. 3,00,000/- will be within the permissible tax exemption limit of Rs. 3,00,000/- plus Rs. 75,000/- (Disability Allowance under Section 80U of the Income Tax Act,1961). E. All these deposits on maturity shall be re-invested by Respondent No.2 – Pooja Sharma with the concurrence of the concerned Registrar of this Court on such terms, which will fetch a high rate of interest, and preserve the corpus for the benefit of Respondent No.1. At no stage, will the Respondent 70 No.2 be permitted to withdraw any amount from these deposits without the permission of the concerned Registrar. 11.5.8 We direct the concerned Registrar of this Court to be associated with Respondent No.2- the mother of Master Rishabh Sharma, in giving effect to the directions issued hereinabove. 12. Accordingly, we allow Civil Appeal No. 9461 of 2019 (Diary No. 15393 of 2019) filed by the Complainants. 13. Civil Appeal No. 6619 of 2016 filed by the Hospital and the Doctors is dismissed. The Appellant Nos. 1 to 4 in Civil Appeal No. 6619 of 2016 are directed to deposit the balance amount of. Rs. 44,00,000/- in this Court within a further period of 12 weeks from today. 14. An affidavit of compliance with respect to the deposit of compensation be filed by the Appellants before this Court. 15. We have been informed by the Registry of this Court that the amount of Rs. 32,00,000/-, which was deposited by the Appellants pursuant to Order dated 29.07.2016 of this Court, and kept in a Fixed Deposit with UCO Bank, has accrued an interest of about Rs. 3,80,954/-. We direct that 71 this interest amount be made over to Mrs. Pooja Sharma, the mother and care-giver, for the welfare and education of Master Rishabh Sharma, for the current year. 16. The original medical records be returned by the Registry to the counsel for the Appellant No.1-Hospital. Pending Applications, if any, are accordingly disposed of. Ordered accordingly.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 6619 Of 2016
MAHARAJA AGRASEN
HOSPITAL & ORS. …APPELLANTS
Versus
MASTER RISHABH SHARMA & ORS. …RESPONDENTS
WITH
Civil Appeal No. 9461 Of 2019
(Arising out of Diary No. 15393 of 2019)
POOJA SHARMA & ORS. …APPELLANTS
Versus
MAHARAJA AGRASEN
HOSPITAL & ORS. …RESPONDENTS
J U D G M E N T
INDU MALHOTRA, J.
1. The present Civil Appeals arise out of a complaint of medical
negligence made by Respondent Nos. 1 to 3 – the
Complainants against the Appellant No.1 – Hospital and
Appellant Nos. 2 to 4 – the Paediatricians and
Ophthalmologist Doctors working with the Appellant No.1-
Hospital, and Respondent No.4- the Gynaecologist, before
2
the National Consumer Disputes Redressal Commission
(hereinafter referred to as the “National Commission”).
2. The National Commission vide Judgment and Order dated
10.05.2016 (“impugned Judgment”) allowed the consumer
complaint, and held the Appellant No.1 – Hospital, and
Appellant Nos. 2 to 4 – Doctors guilty of medical negligence,
since they failed to carry out the mandatory check up of
Retinopathy of Prematurity (“ROP”) on Respondent No.1-
Master Rishabh, who was a pre-term baby, which led to his
total blindness. In so far as Respondent No.4- Dr. Rama
Sharma, the Gynaecologist is concerned, who had delivered
the baby, she was exonerated by the National Commission,
and has not been pressed before this Court.
3. Aggrieved by the impugned Judgment passed by the
National Commission, the Appellant No.1- Maharaja
Agrasen Hospital, a super speciality hospital, Appellant No.2
-Dr. G.S. Kochhar and Appellant No.3- Dr. Naveen Jain, the
Consultant Paediatricians working for the Appellant No.1 –
Hospital, and Appellant No.4-Dr. S.N. Jha, the Senior
Consultant Ophthalmologist working for the Appellant No.1-
Hospital have filed Civil Appeal No. 6619 of 2016.
3
4. Respondent No.1-Master Rishab Sharma, is the childpatient, who was Complainant No.1 before the National
Commission, and was represented by his widowed mother
Pooja Sharma – Respondent No.2/the Complainant No.2.
Respondent No.3 is the elder brother of Respondent No.1.
The Complainants have filed Civil Appeal No. 9461 of
2019 (Diary No. 15393 of 2019) before this Court for further
enhancement of the compensation awarded by the National
Commission.
5. The background facts in which the present Civil Appeals
have been filed are as under:-
5.1 Respondent No.2-Pooja Sharma – the Complainant
No.2 was under the ante-natal care of Respondent
No.4-Dr. Rama Sharma at Sharma Medical Centre
since September 2005.
5.2 On 02.04.2005, at about 5.30 p.m., the Respondent
No.2 had to undergo a caesarean section in view of the
condition of Placenta Previa. The baby-Respondent
No.1 was born pre-term at 32 weeks’ gestation, with a
weight of 1.49 kg at the time of birth.
4
5.3 On the same day, at about 8:30 p.m., Respondent
No.4- Dr. Rama Sharma, the Gynaecologist referred
the case for intensive care to Maharaja Agrasen
Hospital- Appellant No.1.
At the time of admission, the general condition of
the baby was poor, and was diagnosed as “32 weeks
pre-term AGA with HMD”. The baby was treated in the
Neo-natal ICU of the Paediatrics Unit and was put on
ventilatory support, and Surfactant injections were
administered gradually.
5.4 The Respondent No.1-baby stayed in the Appellant
No.1-Hospital for almost 4 weeks, and was discharged
on 29.04.2005, which was 27 days after birth.
The Discharge Slip issued by the Appellant No.1-
Hospital to the Complainants reads as follows:
“ Maharaja Agrasen Hospital
Punjabi Bagh, New Delhi-110026, Ph. 25106645 to 54
DISCHARGE SLIP
Hospital No. 505404. Ward: NICU Deptt./Unit: Paed-III.
Name: B/O. Pooja Sharma Age/Sex NB/M.
Date of Admission: 02.04.2005 at 8.30 p.m.
Date of Discharge: 29.04.2005
Diagnosis: PT (32) with HMD with Neonatal Hyperbil with B/L
Pneumothorax Fungal Septicemia.
Condition at time of discharge: Satisfactory.
Consultants: Dr. G.S.Kochar /Dr. N. Jain
5
DOB: 02.04.2005.
Sex: Male.
Birth weight: 1.49 kg.
Weight at discharge: 1.56 kg.
Mode: Emergency LSCS for placenta previa.
FOLLOW UP ADVICE:
• Syp. Taxim O 1 ml BD x 5 d.
• Syp. Osteocalcium TDS.
• Drops Visyneral Z 0.3 ml OD.
• Drop Vitcofol 5 drops OD.
• Drop Evion 5 drops OD
• To review in Pead. OPD on Wed / Sat 4 p.m.
• Refer back to Rama Nursing Home (Sharma Medical
Centre)
_______________ ______-sd-____________
Consultant Medical Officer ”
5.5 There is no advice to the Complainants to have the
ROP test carried out on the baby, who was born
prematurely, in the Discharge Slip. Post discharge, the
Respondent No.2-Complainant brought the baby for a
follow up check-up on 04.05.2005 to the Paediatrics
Unit of the General OPD of the Appellant No.1-
Hospital, when the baby was 4 weeks and 4 days old.
The baby was examined by the Consultant
Paediatricians - Dr. G.S. Kochhar and Dr. Naveen
Jain/ Appellants No. 2 and 3.
As per the medical records, the Respondent No.1-
baby was found to be stable, and Respondent No.2-
6
Complainant was advised to continue breast feeding
along with supplements.
It is pertinent to note that there was no advice or
recommendation for ROP check-up on this date in the
Medical Records produced by the Appellant No.1 –
Hospital.
5.6 On 13.07.2005, the Respondent No.2-Complainant
brought the baby for a 2nd follow-up visit when he was
over 3 months old to the Paediatrics Unit of the
General OPD of the Appellant No.1-Hospital. The
Respondent No.1-baby was examined by Dr. Manoj on
behalf of Dr. G.S. Kochhar. Dr. Manoj advised the
Complainants for the BERA scan/test to be conducted.
It is pertinent to note that there was no advice for
ROP check-up given even on this visit.
5.7 Respondent No.2-Complainant submits that sometime
in November 2005, she noticed abnormal visual
responses in the Respondent No.1 – baby. The
Complainant asked for the medical records of the baby
to have his follow up treatment done.
7
The medical records were, however, not made
available by Appellant No.1-Hospital.
5.8 On 23.11.2005, Respondent No.2 – Complainant took
the baby to Nayantara Eye Clinic, Delhi where an
ultrasound (B. Scan) was conducted. It was advised
that eye-ointment and eye-drops be administered to
the baby.
5.9 On 03.12.2005, the baby was taken by Respondent
No.2- Complainant to Shroff Charity Eye Hospital,
Delhi for further examination where the ultrasound (B.
Scan) was conducted. The Shroff Charity Eye Hospital
diagnosed that the baby had ROP Stage 5 in both eyes,
which is a case of total retinal detachment.
5.10 Respondent No.2-Complainant approached
Respondent No.4- Dr Rama Sharma, the Gynaecologist
of Sharma Medical Centre to explain how the medical
condition of Respondent No.1-baby had remained undiagnosed. Dr. Rama Sharma shifted the blame to the
Appellants.
5.11 On 07.12.2005, Respondent No.2-Complainant took
the baby to the Appellant No.1-Hospital in the Private
8
OPD Consultation. Dr. Sanjay Bhavan,
Ophthalmologist examined Respondent No.1-baby. The
case was referred to Dr. Lingam Gopal of Shankara
Netralaya at Chennai for an urgent appointment.
5.12 On 07.01.2006, the Respondent No.1-baby was taken
by his mother- Respondent No.2-Complainant to Dr.
Rajendra Prasad Centre for Ophthalmic Sciences at
AIIMS, New Delhi for OPD Consultation. After
examination, it was confirmed that it was a case of
ROP Stage 5.
5.13 On 24.02.2007, the Respondent No.2-Complainant
was constrained to issue a legal notice to the Appellant
No.1-Hospital to provide the entire in-patient medical
records of the baby in compliance with Regulation
1.3.2 of the Indian Medical Council (Professional
Conduct, Etiquettes and Ethics) Regulations, 2002
(“IMC Regulations”).
5.14 The Appellant Nos. 1 to 3 failed to provide the inpatient medical records to the Complainant despite the
issuance of legal notice.
9
5.15 The Respondent No.2-Complainant then filed a
complaint with the Delhi Medical Council for a
direction to the Appellant No.1-Hospital to provide the
complete in-patient medical records pertaining to the
baby.
5.16 Eventually, the Appellant No.1-Hospital provided a
copy of the medical records of the baby alongwith the
Case Summary on 14.06.2007 after more than 2 years
of discharge from the Appellant No.1-Hospital.
5.17 The Respondent No.2-Complainant contends that
when she received these records, she was shocked to
find that the medical records mentioned an alleged
ROP check-up was conducted on 26.04.2005 by
Appellant No.4-Dr. S.N. Jha. The Respondent No.2-
Complainant contends that no ROP examination was
conducted by Appellant No.4-Dr. S.N. Jha.
5.18 On 04.08.2007, the Respondent No.2-Complainant
addressed a letter to the Medical Superintendent of
Appellant No.1- Hospital. The relevant extract of the
said letter is reproduced hereinbelow for ready
reference:
10
“Under the above enclosure we have received photocopies of some
Medical Record (uncertified) along with a case summary dated 13-
06-2007.
The said summary states that on 26-04-2007 ROP examination on
our baby was conducted in the Ophthalmological unit of your
hospital and review examination after two weeks was also advised.
We are rather intrigued by this observation as it does not find
mention anywhere in the Discharge Summary nor is there any follow
up advise.
Since both of us do not recollect any such examination conducted in
our presence or review advise and the said medical record is also
totally silent about it, kindly provide us with the entire record of the
Ophthalmological unit, name of the Paediatric Ophthalmologist who
had conducted the ROP examination and his written report dated
26-04-2006.”
[emphasis supplied]
5.19 Appellant No.1- Hospital replied to the letter on
24.08.2007, wherein it was stated that:
“As per standard neonatal protocol, ophthalmological check-up was
requested on 25-04-2005 to rule out ROP.
The ophthalmological examination was done in the Nursery on 26-
04-2005 morning by Dr. S. N. Jha, Senior Consultant
Ophthalmologist. The written report of the Ophthalmological unit is
stated on page no.102 of the case record.”
[emphasis supplied]
5.20 On 19.11.2007, Respondent Nos. 1 to 3 filed a
Consumer Complaint under Section 21 (a)(i) of the
Consumer Protection Act, 1986 before the National
Commission [Consumer Case No. 119 Of 2007]
claiming compensation of Rs. 1,30,25,000/- alleging
medical negligence and deficiency in service on the
11
part of Appellant Nos. 1 to 4, and Respondent No.4-
the Gynaecologist, for compensation for the permanent
physical disability, mental agony, and social stigma,
deprivation of normal human life, companionship,
torture and harassment etc.
5.21 The Delhi Medical Council vide order dated 14.12.2007
issued a warning to the Appellant No.1-Hospital for the
delay in supplying the medical records of the
Respondent No.1-baby to the Complainant.
5.22 The National Commission vide Order dated 29.02.2012
directed the Medical Board, AIIMS to give an expert
opinion in the matter.
5.23 The Medical Board of AIIMS submitted its Report dated
11.05.2012 to the National Commission. The Report
states that as per standard guidelines (National
Neonatology Forum), new born babies who are born at
32 weeks’ gestation or less, should have their eyes
examined at 3-4 weeks of age and more frequent
check-ups to be done thereafter. Appellant No.4- Dr.
S.N. Jha examined the baby at 24 days of age in
accordance with established protocol. If ROP screening
12
does not reveal any ROP, then repeat examination
should be performed after 2 weeks. The Report goes on
to say that after discharge, the baby was brought twice
to the General OPD of the Appellant No.1- Hospital.
There is no record to show that the baby was brought
after 2 weeks of discharge to the Paediatrics OPD clinic
when subsequent progression could been assessed and
treated on time.
6. The National Commission vide its Judgment and Order
dated 10.05.2016 (bench comprising of Presiding
Member J.M. Malik J. and Dr. S.M. Kantikar, a
qualified doctor) held as under:
6.1 The National Commission was not convinced that
the ROP screening was done by O.P. No.5/Appellant
No.4 on Respondent No.1-baby. The progress sheet
was devoid of any details about the ROP
examination, the method and instruments used,
drugs (midrates/tropicamide)/ anaesthesia used
during ROP testing. The Ophthalmologist has not
mentioned any details of the dilation of the pupils,
and the findings by indirect ophthalmoscope, and
13
the intra-ocular or extra retinal findings. The
standard ROP screening protocol was not followed.
The Nurses’ Daily Records from 25.04.2005 to
27.04.2005 does not show that any ROP
examination was done by O.P. No. 5/Appellant No.
4.
6.2 The AIIMS Report did not comment about the details
of the ROP screening and the follow-up findings.
6.3 The National Commission held that the sequence of
events leading to ROP usually takes about 4 to 5
weeks, except in a small sub-set of premature
infants who develop rush disease in 2 to 3 weeks.
The routine screenings should begin at no later than
4 weeks after birth, and possibly even earlier for
infants at higher risk (2 to 3 weeks). It is strongly
recommended that one session of retinal screening
be carried before Day 30 of the life of any premature
baby. The examination should be done with the
dilation of the pupil with Tropicamide 0.5% to 1%
with Phenylapinephrine 2.5%.
14
6.4 The National Commission came to the conclusion
that O.P. No.5/Appellant No.4 did not conduct the
ROP screening on the baby. ROP screening is a
team-work of the Paediatrician, Opthalmologist and
the NICU nurse. There is no medical documentation
of the ROP screening procedural details. The O.P.
No. 5 should have performed the retinal
examination with binocular indirect opthalmoscope
on dilation of the pupil with scleral depression to
ascertain avascular zone at the periphery of the
retina. The National Commission found that nothing
was forthcoming from Page 102 of the medical
records. It appears to be a bare visual examination
done by O.P. No. 5 in haste to cover up the case.
The National Commission was of the
considered view that neither the ROP screening was
performed, nor was any advice for follow up of ROP
given to the Respondent No.2-Complainant/mother.
6.5 The National Commission held that the Respondent
No.1-Master Rishabh had been rendered blind for
life, which could never really be compensated in
15
monetary terms. The baby had lost his father during
the pendency of proceedings in 2013. The
Respondent No.2-Complainant had been pursuing
the consumer complaint single-handedly for almost
a decade.
6.6 The National Commission awarded an amount of Rs.
53,00,000/- to the Respondent No.1-baby by
applying the average inflationary principle at a
conservative rate of 1% p.a., keeping in mind the
fluctuations over the next 59 years. The National
Commission awarded an amount of Rs. 10,00,000/-
to the Respondent No.2-Complainant/mother who
would have to take care of the blind child
throughout her life. A further amount of Rs.
1,00,000/- was awarded towards costs of litigation.
The National Commission held O.P. Nos. 2 to 5/
Appellant Nos. 1 to 4 to be jointly and severally
liable to pay the total amount of Rs. 64,00,000/-
within 2 months of the Order. The entire amount
would carry interest at the rate of 9% p.a.
16
Out of the total compensation awarded, Rs.
50,00,000/- would be kept in a Fixed Deposit with a
nationalised bank till Respondent No.1 attained the
age of majority. The periodic interest on the deposit
would be paid to the Respondent No.2-
Complainant/ mother till the child attained the age
of majority. The remaining amount of Rs.
14,00,000/- would be released to the Respondent
No.2-Complainant.
7. Aggrieved by the impugned Judgment passed by the
National Commission, C.A. No. 6619 of 2016 was filed by
the Hospital and the Doctors before this Court. The
Complainants have filed Civil Appeal No. 9461 of 2019
(Diary No. 15393 of 2019) before this Court for
enhancement of compensation.
This Court vide interim Order dated 29.07.2016
ordered stay of the operation of the impugned Judgment,
subject to the Appellant No.1-Hospital depositing 50% of the
amount awarded by the National Commission in this Court
within 6 weeks.
17
On 07.09.2016, the Appellant No.1-Hospital deposited
an amount of Rs. 32,00,000/- in this Court. This Court vide
Order dated 7.11.2016, directed the amount to be kept in a
Fixed Deposit with UCO Bank, which was renewed from
time to time. The fixed deposit is due to mature on
17.02.2020.
8. We have heard the learned Counsel for all the parties and
perused the original Medical Records, pleadings and written
submissions filed by the parties.
9. The learned counsel for the Appellants viz. the Hospital and
Doctors inter alia submitted that:
9.1 Respondent No.1-baby was pre-term (32 weeks) with
signs of HMD, and was admitted in Appellant No.1-
Hospital on 02.04.2005 in a critical condition with
little chance of survival. The baby was admitted in the
neo-natal ICU, and had to be immediately placed on
ventilatory support for 10 days. As per standard
protocol, regular investigations and Arterial Blood Gas
(ABG) analysis were performed. Blood component
therapy was given. The critical condition of the baby
and possible neuro-development, visual and hearing
18
sequel was informed to the parents. The baby was
given utmost care and attention by the Doctors of the
Appellant No.1-Hospital.
9.2 As per protocol, ophthalmological examination was
advised on 25.04.2005 to rule out ROP, as recorded at
Page 100 of the medical records. Appellant No.4-Dr.
S.N. Jha, the Senior Ophthalmologist conducted the
ROP test on 26.04.2005, who found no ROP in
Respondent No.1-baby, as recorded by Appellant No.4
in his handwriting at page 102 of the medical records.
It was submitted that the Appellant No.4 had advised a
further review/check-up after 2 weeks in the speciality
OPD on Wednesay/Saturday between 4 p.m. to 6 p.m.
The parents of Respondent No.1-baby were explained
all the problems which may develop in a premature
baby.
9.3 As per the Discharge Summary at Page 109 of the
medical records, the Complainants were advised to
bring the Respondent No.1-baby for a ROP and BERA
check-up to the speciality OPD on
Wednesday/Saturday at 4 pm.
19
9.4 The Respondent No.2-Complainant brought the baby
to the General OPD of Appellant No.1- Hospital on
04.05.2005 after 8 days of the first ROP check-up, and
not after 2 weeks as advised. Thereafter, the baby was
brought on 13.07.2005, which was after 2 months
again to the General OPD.
9.5 The Appellants relied on the Report of the Medical
Board constituted by AIIMS, which had vide their
Report dated 11.05.2012 held that the baby was not
brought to the Paediatrics OPD Clinic on Wednesdays
or Saturdays at 4 P.M. after two weeks of discharge,
when subsequent progression of ROP could have been
assessed and treated on time.
9.6 The Appellant No.4/O.P. No.5 - Dr. S.N. Jha, a Senior
Ophthalmologist was engaged with the Appellant No.1-
Hospital from 1997 to 2010. It was submitted on his
behalf that on 25.04.2005, the Paediatrics Dept. of the
Appellant No.1-Hospital had requisitioned him to
perform the ROP examination. The Appellant No.4
submits that the ROP was duly conducted by him on
26.04.2005. His finding is recorded at Page 102 of the
20
medical records, wherein he has recorded that he did
not find any evidence of ROP at that stage. It was
further submitted that it was not required to record
the method of dilation of the pupil and use of indirect
ophthalmoscope. The standard medical literature
establishes that ROP manifests itself after 4 weeks of
post-natal age. In view thereof, the finding of Appellant
No.4, who examined the baby only on 26.04.2005 i.e.
when the baby was 24 days old, there was no evidence
of ROP, cannot be faulted.
9.7 It was further submitted that the only requirement for
conducting an ROP examination is a chemical solution
of Tropicamide and Phenylephrine to dilate the eyes,
which was available in the nursery, and an indirect
ophthalmoscope, which is available with all
ophthalmologists. who have specialised in the care of
retina, and are competent to carry ROP examination. It
was submitted that the Appellant No.4 was not
required to record the procedure for conducting the
ROP examination, which is merely the retinal
21
examination of the baby by use of an indirect
ophthalmoscope after dilation of the pupils.
9.8 Appellant No.4 - Dr. S.N. Jha was not consulted on the
two subsequent visits by the Respondent No.2-
Complainant with the baby on 04.05.2005 and
13.07.2005 in the Ophthalmology department, even
though he would have been available in the speciality
OPD on Wednesdays/Saturdays at 4 P.M.
10. The learned counsel for the Complainants –
Respondent Nos. 1 to 3 (Appellant Nos. 1 to 3 in Civil Appeal
No. 9461 of 2019/Diary No. 15393 of 2019), inter alia
submitted that the Respondent No.1-baby has become
permanently blind on account of the gross medical
negligence by the Hospital, and the three specialist doctors
i.e two consultant Paediatricians, and the Ophthalmologist,
for the following reasons:
10.1 The Appellant Nos.1 to 4 did not at any stage conduct
the ROP examination of the baby, who was a
premature baby, nor was the family ever informed
about the high risk of ROP in a premature baby, and
the necessity for regular check-ups.
22
10.2 The Appellant No.1-Hospital had deliberately withheld
the medical records for over two years after discharge.
At the time of discharge on 29.04.2005, the
Complainants were provided with a Discharge Slip,
which did not disclose any instructions advising that
the infant be brought for ROP examination (the
Discharge Slip in Para 5.4 above).
In this Discharge Slip, there is no advice of ROP
having been conducted, or follow-up of ROP, nor was
the risk of ROP explained by the Appellant Nos. 2 and
3 to the Respondent No.2-Complainant.
10.3 The Complainants have strongly contended that parts
of the medical records, which were provided after 2
years in 2007, had been fabricated and interpolated as
an afterthought to escape liability.
It was submitted that a bare perusal of the noting
dated 26.04.2005 made in the medical record by
Appellant No.4- the Ophthalmologist, shows that is
merely a scribble, and is illegible. The Complainants
have strongly refuted the case of the Appellants that
23
the ROP was conducted by Appellant No.4 on
26.04.2005.
The Complainants have supported their
submission on the basis of :(i) the progress sheets,
which contain no details of the ROP examination; (ii)
there is no mention of the ROP examination in the
Nurses’ Daily Record; (iii) ROP exam is conducted with
the help of dilation by using Cyclopentolate (0.5%) and
Phenylephrine (2.5%) drops to be applied 2 to 3 times,
about 10-15 minutes apart. There is no record with
respect to the administration of the these medicines to
the baby; (iv) there is no mention of the ROP test in the
Discharge Slip of 29.04.2005;
10.4 The Complainants contended that if the standard
protocol had been carried out by the Doctors, the ROP
would have been detected at an early stage, and could
have been cured, since it is medically known to be
reversible at the early stages.
On account of the negligence of the Appellant
Nos. 1 to 4, the ROP was discovered only at Stage 5, by
the Shroff Charity Eye Hospital, when the baby was 8
24
months old. By this time, the ROP became irreversible,
and resulted in total blindness of the Respondent No.1-
baby.
10.5 It was further urged that the quantum of compensation
awarded by the National Commission was grossly
inadequate and insufficient. The National Commission
failed to take into account variables such as the
additional educational expenses in special schools,
transportation costs, costs of purchasing, maintaining
and upgrading Visual Aid/Assistive Devices, costs of
permanent nursing/attendant care and miscellaneous
medical expenses. It was further contended that the
average rate of inflation taken by the National
Commission i.e. a conservative rate of 1 % per annum
for the next 59 years, was grossly undervalued. The
Complainants sought enhancement of the
compensation to the extent of Rs. 9,87,84,000/-.
11. Discussion and Analysis
11.1 Inordinate Delay in Supply of Medical Records
We find that there was an inordinate delay of over 2
years in making the Medical Records of Respondent No.1-
25
Master Rishabh available to the Respondent No.2-
Complainant. Regulation 1.3.2 of the IMC Regulations
casts a statutory obligation upon every doctor/hospital to
provide medical records within 72 hours of the request
being made by the patient.
11.1.1 The Medical Council of India has framed the IMC
Regulations with the previous approval of the Central
Government, in exercise of the powers conferred by
Section 20A read with Section 33(m) of the Indian
Medical Council Act, 1956. The IMC Regulations came
into force on their publication in the Gazette of India on
06.04.2002, and have statutory force.
11.1.2 Regulation 1.3.2 of the Indian Medical Council
(Professional Conduct, Etiquettes and Ethics)
Regulations, 2002 provides as under:
“1.3 Maintenance of medical records:
1.3.1 Every physician shall maintain the medical records
pertaining to his /her indoor patients for a period of 3 years
from the date of commencement of the treatment in a
standard proforma laid down by the Medical Council of
India and attached as Appendix 3.
1.3.2. If any request is made for medical records either by
the patients / authorised attendant or legal authorities
involved, the same may be duly acknowledged and
documents shall be issued within the period of 72 hours.
26
1.3.3 A Registered medical practitioner shall maintain a
Register of Medical Certificates giving full details of
certificates issued. When issuing a medical certificate he /
she shall always enter the identification marks of the
patient and keep a copy of the certificate. He / She shall not
omit to record the signature and/or thumb mark, address
and at least one identification mark of the patient on the
medical certificates or report. The medical certificate shall
be prepared as in Appendix 2.
1.3.4 Efforts shall be made to computerize medical records
for quick retrieval.
[emphasis supplied]
As per Regulation 7, if the doctor refuses or fails to
provide the medical records within 72 hours when the
patient or his/her authorised representative makes a
request as per the Regulation 1.3.2, the said act of
commission or omission would constitute professional
misconduct rendering him/her liable for disciplinary action
and punishment under Regulation 8.
Regulations 7 and 8 provide as follows:
“7. MISCONDUCT
The following acts of commission or omission on the part of a
physician shall constitute professional misconduct rendering
him/her liable for disciplinary action
7.1 Violation of the Regulations: If he/she commits any
violation of these Regulations.
7.2 If he/she does not maintain the medical records of
his/her indoor patients for a period of three years as per
regulation 1.3 and refuses to provide the same within 72
hours when the patient or his/her authorised representative
makes a request for it as per the regulation 1.3.2.
27
8. PUNISHMENT AND DISCIPLINARY ACTION
8.1 It must be clearly understood that the instances of
offences and of Professional misconduct which are given
above do not constitute and are not intended to constitute a
complete list of the infamous acts which calls for disciplinary
action, and that by issuing this notice the Medical Council of
India and or State Medical Councils are in no way precluded
from considering and dealing with any other form of
professional misconduct on the part of a registered
practitioner. Circumstances may and do arise from time to
time in relation to which there may occur questions of
professional misconduct which do not come within any of
these categories. Every care should be taken that the code is
not violated in letter or spirit. In such instances as in all
others, the Medical Council of India and/or State Medical
Councils have to consider and decide upon the facts brought
before the Medical Council of India and/or State Medical
Councils.
8.2 It is made clear that any complaint with regard to
professional misconduct can be brought before the
appropriate Medical Council for Disciplinary action. Upon
receipt of any complaint of professional misconduct, the
appropriate Medical Council would hold an enquiry and give
opportunity to the registered medical practitioner to be heard
in person or by pleader. If the medical practitioner is found to
be guilty of committing professional misconduct, the
appropriate Medical Council may award such punishment as
deemed necessary or may direct the removal altogether or for
a specified period, from the register of the name of the
delinquent registered practitioner. Deletion from the Register
shall be widely publicized in local press as well as in the
publications of different Medical Associations/
Societies/Bodies.
8.3 In case the punishment of removal from the register is for
a limited period, the appropriate Council may also direct that
the name so removed shall be restored in the register after
the expiry of the period for which the name was ordered to be
removed.
8.4 Decision on complaint against delinquent physician shall
be taken within a time limit of 6 months.
8.5 During the pendency of the complaint the appropriate
Council may restrain the physician from performing the
procedure or practice which is under scrutiny.
28
8.6 Professional incompetence shall be judged by peer group
as per guidelines prescribed by Medical Council of India.”
11.1.3 The IMC Regulations framed by the Medical Council of
India are binding on all medical professionals, who are
under a statutory obligation to provide medical records to
the patients or their attendants. All hospitals, whether
Government or private are liable to maintain
the medical records, and provide the same to patient or
their attendants within 72 hours of the request.
11.1.4 The Delhi Medical Council vide Circular No.
DMC/DHS/F.5/2/2009 dated 15.05.2009 casts a
statutory obligation on all registered medical practitioners
and hospitals/nursing homes to strictly adhere to
Regulation 1.3.2 of the IMC Regulations. The failure to
comply with the same would constitute professional
misconduct and entail disciplinary action.
11.1.5 This Court in Federation of Obstetrics & Gynaecological
Societies of India v. Union of India1 held that “considering
the nature of services rendered by medical professionals,
proper maintenance of records is an integral part of the
medical services.”
1 (2019) 6 SCC 283
29
11.1.6 The Respondent No.2-Complainant submitted that she
had made several requests for being provided the inpatient records for further evaluation/examination of the
baby, which was not made available to her for over 2
years after his discharge in April 2005 from the Appellant
No.1- Hospital. Respondent No.2-Complainant had to run
from one hospital to another so as to ascertain why her
son had abnormal visual responses. Despite repeated
requests, the Medical Records were withheld by the
Hospital. The Respondent No.2-Complainant had a legal
notice issued on 24.02.2007 to the Appellant No.1-
Hospital requesting for the entire in-patient medical
record of her child, and made a complaint to the Delhi
Medical Council. The Appellant No.1 -Hospital eventually
provided the medical record on 14.06.2007.
11.1.7 The Delhi Medical Council vide Order dated
14.12.2007 issued a warning to the Appellant No.1-
Hospital for the delay in supplying the medical records of
Respondent No.1 to the Complainant.
We find that withholding the medical records of
Respondent No.1, who was a premature baby, for a
30
period of over 2 years, would constitute grave
professional misconduct under Regulation 7, apart from
being a gross deficiency in service on the part of the
Appellant No.1-Hospital and its management.
11.2 Failure to diagnose Retinopathy of Prematurity (ROP)
Retinopathy of Prematurity (ROP) is one of the
major emerging causes of childhood blindness. A
premature baby is not born with ROP. At the time of
birth, particularly in the case of premature babies, the
retina is immature, which is natural at this stage. It is
the post-natal developments in the retinal vessels which
could lead to ROP.
11.2.1 As per medical literature, all infants with a birth
weight of less than 1500 grams, or gestational age of
less than 32 weeks, are required to be mandatorily
screened for ROP, which usually takes about 4 to 5
weeks to be diagnosed. The routine screening should
begin no later than 4 weeks after birth, and possibly
even earlier for infants at higher risk (2 to 3 weeks).
31
The standard of care is to be judged in the light of
the protocols and standard procedures prevailing on
the date of birth, and not on the date of trial. 2
11.2.2 In Programme Planning and Screening Strategy in
Retinopathy of Prematurity3, published in March 2003
co-authored by Drs. Subhadra Jalali, MS; Raj Anand,
MS; Harsh Kumar, MD; Mangat R Dogra, MS;
Rajvardhan Azad, MD,FRCS (Ed); Lingam Gopal, MS
have opined that:
“There are several compelling reasons to have a
screening programme for ROP. Firstly, the premature child
is not born with ROP and retinal disease is not present at
birth. Each prematurely born child has a potential for
normal vision, even if the retina is immature at birth.
Screening for ROP aims to identify those infants who have
reached or have the potential to reach threshold ROP,
which if untreated, may cause blindness or visual
impairment. This has medico-legal implications. There are
indefensible legal repercussions should an infant develop
ROP and retinal detachment, but had not received eye
examination. Secondly, the grief and the personal tragedy
for the family is tremendous, besides the economic burden
of such childhood blindness. The aim of screening
premature babies for ROP is to detect all treatable
2 Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka, (2009) 6 SCC 1; Jacob
Mathew v. State of Punjab (2005) 6 SCC 1 : 2005 SCC (Cri) 1369
3 Subhadra Jalali, MS; Raj Anand, MS; Harsh Kumar, MD; Mangat R Dogra, MS;
Rajvardhan Azad, MD,FRCS (Ed); Lingam Gopal, MS, Programme Planning and Screening
Strategy in Retinopathy of Prematurity, Indian J Ophthalmol 2003 (March 2003), Vol. 51,
Pages 89-99
32
neonates, with minimal expense of time and resources.
This also aims at not screening those babies who are
unlikely to get a severe form of ROP. Early recognition of
ROP by screening provides an opportunity for effective
treatment…. The criteria for screening babies are based on
two critical factors – the birth weight and the gestational
age.”
[emphasis supplied]
A well organised screening strategy and timely
intervention can to a large extent prevent blindness
due to ROP. Extensive clinical trials and publications4
have established that among other factors, gestation
period and low birth weight are critical in the
pathophysiology of ROP. If detected early and treated
with peripheral retinal cryopexy or laser, ROP
blindness can be prevented to some extent.5 Once the
4 Palmer EA, Flynn JT, Hardy RJ, Phleps DL, Phillips CL, Schaffer DB, Incidence and early
course of retinopathy of prematurity. Ophthalmology 1991;98:1628-40; Fielder AR, Shaw
DF, Robinson J, Ng YK, Natural history of retinopathy of prematurity: A prospective study.
Eye 1992;6:233-42; STOP-ROP Multicentre Study Group. Supplemental therapeutic
oxygen for prethreshold retinopathy of prematurity (STOP-ROP), a randomised controlled
trial: Primary outcomes. Paediatrics 2000;150:295-10. Cryotherapy for Retinopathy of
Prematurity Cooperative Group. Multicentre trial of cryotherapy for retinopathy of
prematurity-Three-month outcome. Arch Ophthalmol 1990;108:195-40.
5 Cryotherapy for Retinopathy of Prematurity Cooperative Group. Multicentre trial of
cryotherapy for retinopathy of prematurity-Three-month outcome, Arch Ophthalmol
1990;108:195-40 ; Cryotherapy for Retinopathy of Prematurity Cooperative Group.
Multicentre trial of cryotherapy for retinopathy of prematurity-3¹⁄₂ years outcome for both
structure and function, Arch Ophthalmol 1993;111:339-44. Tsisis T, Tasman W, Mcnamara
JA, Brown G, Vander J. Diode laser photocoagulation for retinopathy of prematurity, Trans
Am Ophthal Soc 1997;95:231-36.; Despande DA, Chaturvedi M, Gopal L, Ramachandram S,
Shanmugasundaram R. Treatment of threshold retinopathy of prematurity, Indian J
Ophthalmol 1998;46:15 19.
33
case crosses Stage 3, in very few cases can the sight be
saved even by extensive vitreoretinal surgery.6
11.2.3 This Court considered this issue in a similar case in V.
Krishnakumar v. State of Tamil Nadu7. In that case, a
premature female baby was born in the 29th week of
pregnancy. The infant weighed only 1.25 kgs at birth.
The doctors failed to examine the baby for ROP, or
advise the parents that the baby was required to be
seen by a paediatric ophthalmologist since there was a
possibility of occurrence of ROP, so as to avert
permanent blindness. The discharge summary neither
disclosed a warning to the infant's parents of the
possibility that the infant might develop ROP for which
certain precautions must be taken, nor any signs that
the doctors were themselves cautious of the dangers of
development of ROP. The doctors attempted to cover
up their gross negligence of not having examined the
infant for the onset of ROP, which is a standard
precaution for a well-known condition in such a case.
6 Cherry TA, Lambert SR, Capone-A Jr. Electroretinographic findings in stage V retinopathy
of prematurity after retinal reattachment, Retina 1995;15:21-24; Noorily SW, Small K, Juan
E de, Machemar R. Scleral bucking surgery for stage 4B retinopathy of prematurity,
Ophthalmology 1992;99:263-68.
7 (2015) 9 SCC 388 : (2015) 4 SCC (Civ) 546
34
This Court after reviewing and analysing the
medical literature on ROP, observed that the problem
occurs in infants who are prematurely born, and who
have been administered oxygen and blood transfusion
upon birth. If detected during early stages, it can be
prevented. In para 4 of the judgment, this Court held
that:
“4. ….It is said that prematurity is one of the most
common causes of blindness and is caused by an initial
constriction and then rapid growth of blood vessels in the
retina. When the blood vessels leak, they cause scarring.
These scars can later shrink and pull on the retina,
sometimes detaching it. The disease advances in severity
through five stages — 1, 2, 3, 4 and 5 (5 being the terminal
stage). Medical literature suggests that Stage 3 can be
treated by Laser or Cryotherapy treatment in order to
eliminate the abnormal vessels. Even in Stage 4, in some
cases, the central retina or macula remains intact thereby
keeping intact the central vision. When the disease is
allowed to progress to Stage 5, there is a total detachment
and the retina becomes funnel shaped leading to
blindness. There is ample medical literature on the subject.
It is, however, not necessary to refer all of it. Some
material relevant to the need for check-up for ROP for an
infant is:
“All infants with a birth weight less than 1500 gm or
gestational age less than 32 weeks are required to be
screened for ROP.” [ AIIMS Report dated 21-8-2007]
35
5. It is undisputed that the relationship of birth weight and
gestational age to ROP as reproduced in NCDRC's order is
as follows:
“Most ROP is seen in very low birth weight infants, and the
incidence is inversely related to birth weight and
gestational age. About 70-80% of infants with birth weight
less than 1000 gm show acute changes, whereas above
1500 gm birth weight the frequency falls to less than
10%.”
6. …. It is further observed that ROP is a visually
devastative disease that often can be treated successfully
if it is diagnosed in time.”
[emphasis supplied]
This Court relied upon a Report dated 21.08.2007
of the All India Institute of Medical Sciences, New Delhi
comprising of five members, of which, four were
ophthalmological specialists. The Board opined as under:
“A premature infant is not born with Retinopathy of
Prematurity (ROP), the retina though immature is normal
for this age. The ROP usually starts developing 2-4 weeks
after birth when it is mandatory to do the first screening of
the child. The current guidelines are to examine and screen
the babies with birth weight<1500 gm and <32 weeks
gestational age, starting at 31 weeks post-conceptional
age (PCA) or 4 weeks after birth, whichever is later.
Around a decade ago, the guidelines in general were the
same and the premature babies were first examined at 31-
33 weeks post-conceptional age or 2-6 weeks after birth.
There is a general agreement on these above guidelines on
a national and international level. The attached annexure
explains some authoritative resources and guidelines
36
published in national and international literature
especially over the last decade.
However, in spite of ongoing interest world over in
screening and management of ROP and advancing
knowledge, it may not be possible to exactly predict which
premature baby will develop ROP and to what extent and
why.”
[emphasis supplied]
On a review of the literature on ROP, the Supreme Court in
V. Krishnakumar (supra) set out the screening guidelines as
follows:
 Year Source First screening Who to screen
2006 American Academy
of Paediatrics et al.
31 weeks PCA or 4
weeks after birth,
whichever is later.
<1500 gm birth
weight or <32 weeks
GA or higher.
2003 Jalali S et al. Indian J
Ophthalmology
31 weeks PCA or 3-4
weeks after birth,
whichever is earlier.
<1500 gm birth
weight or <32 weeks
GA or higher.
2003 Azad et al. JIMA 32 weeks PCA or 4-5
weeks after birth,
whichever is earlier.
<1500 gm birth
weight or <32 weeks
GA or higher.
2002 Aggarwal R et al.
Indian J. Paediatrics
32 weeks PCA or 4-6
weeks after birth,
whichever is earlier.
<1500 gm birth
weight or <32 weeks
GA.
1997 American Academy
of Paediatrics et al.
31-33 weeks PCA or
4-6 weeks after birth.
<1500 gm birth
weight or <28 weeks
GA or higher.
1996 Maheshwari R et al.
National Med. J.
India
32 weeks PCA or 2
weeks after birth,
whichever is earlier.
<1500 gm birth
weight or <35 weeks
GA or 02>24 hrs.
1988 Cryotherapy ROP
Group
4-6 weeks after birth. <1250 gm birth
weight.
This Court observed that ROP starts developing 2 to 4
weeks after birth when it is mandatory to do the first
screening of the child. As per the report of AIIMS “it may not
37
be possible to exactly predict which premature baby will
develop ROP and to what extent and why”. This would
necessitate the need for a check-up in all such cases.
11.2.4 It is clear from the above medical literature that ROP is a
visually progressive disease, which can be treated
successfully if it is diagnosed on time. ROP advances
through 5 stages. Medical literature suggests that Stage 3
can be treated by Laser or Cryotherapy treatment in order to
eliminate the abnormal vessels. Even at Stage 4, in some
cases, the central retina or macula remains intact thereby
keeping intact the central vision. When the disease
progresses to Stage 5, there is a total detachment, and the
retina becomes funnel shaped, leading to blindness.
11.2.5 We have carefully perused the original Medical Records of
the Appellant No.1-Hospital, which were provided in a
sealed cover to the Court.
We find that there is an entry at Page 100 of the
medical records dated 25.04.2005 recorded at 9:00 a.m.
which reads as under:
“ 25/4/05
 9 AM Stable
Wt: 1.56 kg
Accepting cup feeds
S/E – NAD
38
D19 of Inj Amphocan
 Plan for Discharge tomorrow
Adv:
- Breast feeds
- Cont. rest
- ROP Checkup (Dr Jha) ”
[emphasis supplied]
At the bottom of page 102 of the medical records, there
is another entry dated 26.04.2005, which reads as under:
“ 26/4 by Dr. SNJ
No ROP
 Review, 2 weeks. ”
The said noting is signed by Dr. S.N. Jha – Appellant
No.4. There is, however, no time mentioned against this
noting.
A visual examination of the original medical
records/Treatment Sheet shows that this entry is not
recorded in the same sequence as all previous and
subsequent notings. The entries recorded at Page 100 and
Page 102 have been made at the bottom of the page. The
date “26/4” is mentioned in a different column, unlike the
other entries made before and after this entry. There is no
time of the ophthalmological examination by Appellant
No.4-Dr. S.N. Jha on 26.04.2005 mentioned in the record,
39
unlike all other notings by other doctors, who have
examined the patient, where the time is clearly recorded.
On the next page i.e. page 103 of the medical record, it
is mentioned as “Day 28” i.e. 26.04.2005 on the top of the
page. The first entry on that date is recorded at 10.30 am.
This would indicate that the baby was not examined prior
to 10.30 a.m. by any doctor.
There is no contemporaneous record to corroborate
that ROP screening was done by Appellant No.4 on
26.04.2005. The Nurses’ Daily Record or Treatment Sheet
do not mention that the dilation of the pupils of the baby
were carried out by administration of Cyclopentolate (0.5%)
and Phenylephrine (2.5%) drops to conduct test of ROP.
We had orally enquired from the learned counsel
appearing on behalf of Appellant No.4- Dr. S.N. Jha about
the approximate time at which the ROP check-up was done
by him on 26.04.2005. The counsel was unable to specify
the time at which the baby was examined by him.
11.2.6 The Respondent No.1-baby was discharged on 29.04.2005.
The Complainants were provided with a Discharge Slip. The
Discharge Slip does not contain any advice for a mandatory
40
follow-up for ROP. Rather, the Discharge Slip only advised
the Complainant to bring the Respondent No.1 for a review
to the Paediatrics OPD on Wednesday or Saturday at 4 P.M.
11.2.7 The Counsel for the Hospital and the Doctors contended that
post-discharge, the Respondent No.2-Complainant did not
bring the baby to the speciality Paediatric OPD for a checkup as advised in the Discharge Summary.
11.2.8 We have seen the original medical records produced by the
Appellant No.1-Hospital, and find that on both occasions,
i.e. 04.05.2005 and 13.07.2005, the Complainants went
correctly to the Paediatrics Unit of the General OPD. Hence,
the contention of the Appellants is liable to rejected as being
completely baseless.
11.2.9 The Complainant took the baby for a follow up check-up
post-discharge to the Paediatrics-III Department on two
occasions i.e. 04.05.2005 and 13.07.2005.
The baby was examined by Appellants No. 2 and 3 on
04.05.2005. In the Treatment Sheet, there is no
recommendation to have ROP test done, nor was the patient
advised to come back after two weeks. The noting on
04.05.2005 is extracted hereinbelow for ready reference:
41
“ MAHARAJA AGRASEN HOSPITAL
Punjabi Bagh, New Delhi – 26
Ph. 252266465 to 54 (10 lines)
General OPD Prescription
MAH No.: 0505404 Date : 04-05-05
Deptt./Unit …..PAEDIATRICS-III WED, SAT…09:00 To
11:00
Consultants : Dr. G.S. Kochhar / Dr.Naveen Jain
B/O POOJA SHARMA Age /Sex 1 Mths
Male.
Wt 1.65 kg
FUC 32 weeks preterm AGA with HMD
 with bilateral pneumothorax
 with fungal septicemia.
Baby stable.
Adv.
- Breast feeds.
- Continue supplements.
------------------
Signature Dr. Naveen Jain. ”
The Complainant took the baby for a further follow-up
on 13.07.2005 to the Paediatrics-III Department. The baby
was examined by Dr. Manoj on behalf of Appellant No.2. The
medical record even on this date does not mention any
advice for an ROP test. The attending doctor only advised
that a BERA test be done. The noting on 13.07.2005 is
reproduced hereinbelow for ready reference:
42
“ MAHARAJA AGRASEN HOSPITAL
Punjabi Bagh, New Delhi – 26
Ph. 252266465 to 54 (10 lines)
General OPD Prescription
MAH No 05052879 Date 13-07-05
Deptt.: PAEDIATRICS-III WED, SAT…09:00 To
11:00
Consultants : Dr. G.S. Kochhar / Dr.Naveen Jain
RISHABH SHARMA Age /Sex 4 Mths Male.
B/O Pooja Sharma
Wt 4 kg
Dr. Manoj Advice – BERA test
Calcirol sachet (3)
Visyneral-Z drops 8 drops daily.
RB tone drop 5 drops.
Syp. Lactocal 1/2 tsf.
------------------
Dr. G.S. Kochhar (Signature) ”
It is thus abundantly clear that the baby was rightly
taken to the Paediatrics Unit of the General OPD Clinic at
the chronological age of 4 to 5 weeks, when the onset of
ROP could have been detected. However, there was no
advice given by the treating doctors i.e. Appellants Nos. 2
and 3 – the Consultant Paediatricians, nor the Appellant
No.4 – Ophthalmologist to conduct the ROP test.
11.2.10 We find that the ROP was neither advised, nor carried out at
all by the Appellant No.1-Hospital, or Appellant No.4-Dr.
S.N. Jha, the Senior Ophthalmologist, throughout the
43
period of hospitalisation of the baby, or even after discharge.
The baby was born in the 32nd gestational week, and was
1.49 kgs at birth. As per standard protocol, the ROP
screening ought to have been done between 3-4 weeks from
birth. The baby remained admitted for 27 days in the
Hospital from 02.04.2005 to 29.04.2005. There is no
justification whatsoever why the mandatory screening of
ROP was not done for the baby, while he was under the
direct care and supervision of the Appellants.
We affirm the findings of the National Commission of
gross negligence by the Appellant Nos. 2 to 4-Doctors, and
deficiency of service by the Appellant No.1- Hospital.
11.3 Report of the Medical Board constituted by AIIMS
11.3.1 A perusal of the AIIMS Report 11.05.2012 shows that it was
premised on the alleged entry recorded by Appellant No.4 -
Dr. S.N. Jha on 26.04.2005, which records that ROP test
was conducted, and no ROP was detected.
We have already recorded a finding that the entry
made in the Treatment Sheet (at pages 100 and 102 of the
original Medical Records) seems to be an interpolation done
subsequently to cover up the failure of the Hospital and the
44
Doctors to advise or conduct the mandatory ROP check-up
and follow-up protocol.
The second point contained in the AIIMS Report that
the baby was not taken to the Paediatrics OPD is wholly
fallacious. We have seen the medical records, and find that
the baby was, in fact, taken to the Paediatrics Unit of the
General OPD. Hence, the basis of the Report is
misconceived, and cannot be relied upon.
11.3.2 It is well-settled that a court is not bound by the evidence of
an expert, which is advisory in nature. The court must
derive its own conclusions after carefully sifting through the
medical records, and whether the standard protocol was
followed in the treatment of the patient. The duty of an
expert witness is to furnish the Court with the necessary
scientific criteria for testing the accuracy of the conclusions,
so as to enable the Court to form an independent opinion by
the application of this criteria to the facts proved by the
evidence of the case.8 Whether such evidence could be
8 Ramesh Chandra Aggarwal vs. Regence Hospital Ltd. & Ors. (2009) 9 SCC 709; State of
H.P. v. Jai Lal (1999) 7 SCC 280 : 1999 SCC (Cri) 1184
45
accepted or how much weight should be attached to it is for
the court to decide.
9
11.3.3 We accept the view taken by the National Commission in
disregarding the opinion of the Medical Board constituted by
AIIMS.
11.3.4 The Complainants have discharged the initial burden of
proof10 by making out a case of clear negligence on the part
of the Appellant No.1-Hospital and the Paediatric doctors
under whose care the baby was admitted, as also Appellant
No.4 – Dr. S.N. Jha, the senior Ophthalmologist attached to
the Appellant No.1-Hospital.
The Appellant No.1 - Hospital and the Appellants Nos.
2-4 - Doctors have failed to satisfy the Court that ROP tests
were conducted at any point of time, or that the
Complainants were even advised to get the ROP test done.
11.4 Medical Negligence and Duty of Care
11.4.1 Medical negligence comprises of the following
constituents: (1) A legal duty to exercise due care on the part
of the medical professional; (2) failure to inform the patient of
9 Malay Kumar Ganguly v. Dr. Sukumar Mukherjee, (2009) 9 SCC 221 : (2010) 2 SCC (Cri)
299 : (2009) 3 SCC (Civ) 663; V. Kishan Rao v. Nikhil Super Speciality Hospital, (2010) 5
SCC 513 : (2010) 2 SCC (Civ) 460
10 Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka, (2009) 6 SCC 1 : (2009) 2
SCC (Civ) 688; Savita Garg v. National Heart Institute (2004) 8 SCC 56
46
the risks involved; (3) the patient suffers damage as a
consequence of the undisclosed risk by the medical
professional; (4) if the risk had been disclosed, the patient
would have avoided the injury; (5) breach of the said duty
would give rise to an actionable claim of negligence.
The cause of action for negligence arises only when
damage occurs, since damage is a necessary ingredient of
this tort. In a complaint of medical negligence, the burden is
on the complainant to prove breach of duty, injury and
causation. The injury must be sufficiently proximate to the
medical practitioner's breach of duty. In the absence of
evidence to the contrary adduced by the opposite party, an
inference of causation may be drawn even though positive or
scientific proof is lacking.
11
11.4.2 Medical negligence is the breach of a duty of care by
an act of omission or commission by a medical professional
of ordinary prudence. Actionable medical negligence is the
neglect in exercising a reasonable degree of skill and
knowledge to the patient, to whom he owes a duty of care,
which has resulted in injury to such person. The standard to
11 Postgraduate Institute of Medical Education & Research v. Jaspal Singh, (2009) 7 SCC 330
: (2009) 3 SCC (Cri) 399 : (2009) 3 SCC (Civ) 114
47
be applied for adjudging whether the medical professional
charged has been negligent or not, in the performance of his
duty, would be that of an ordinary competent person
exercising ordinary skill in the profession. The law requires
neither the very highest nor a very low degree of care and
competence to adjudge whether the medical professional has
been negligent in the treatment of the patient.
12
11.4.3 The degree of skill and care required by
a medical practitioner stated in Halsbury's Laws of England13
is as follows:-
“22. Negligence.—Duties owed to patient. A person who
holds himself out as ready to give medical advice or treatment
impliedly undertakes that he is possessed of skill and
knowledge for the purpose. Such a person, whether he is a
registered medical practitioner or not, who is consulted by a
patient, owes him certain duties, namely, a duty of care in
deciding whether to undertake the case; a duty of care in
deciding what treatment to give; and a duty of care in his
administration of that treatment. A breach of any of these
duties will support an action for negligence by the patient.
35. Degree of skill and care required.—…To establish liability
on that basis it must be shown (1) that there is a usual and
normal practice; (2) that the defendant has not adopted it; and
(3) that the course in fact adopted is one no professional man of
12 Refer to Laxman Balkrishna Joshi (Dr.) v. Dr. Trimbak Bapu Godbole, (1969) 1 SCR 206 :
AIR 1969 SC 128; Kusum Sharma v. Batra Hospital (2010) 3 SCC 480 : (2010) 2 SCC (Cri)
1127 : (2010) 1 SCC (Civ) 747
13 4th Edn., Vol. 26 pp. 17-18; 4th Edition, Vol.30, Para 35
48
ordinary skill would have taken had he been acting with
ordinary care.”
[emphasis supplied]
11.4.4 Lord Denning, in Hucks v. Cole14, held that a medical
practitioner would be liable only where his conduct falls
below the standards of a reasonably competent practitioner
in his field.
11.4.5 In earlier judgments, this Court referred to the Bolam
test laid down in Bolam v. Friern Hospital Management
Committee15. In this case, the doctor treating the patient
suffering from mental illness was held not to be guilty of
medical negligence by the Queen’s Bench Division for failure
to administer muscle-relaxant drugs and using physical
restraint in the course of electro-convulsive therapy. McNair,
J., in his opinion, explained the law in the following words16:
“… where you get a situation which involves the use of
some special skill or competence, then the test as to whether
there has been negligence or not is not the test of the man on
the top of a Clapham omnibus, because he has not got this
special skill. The test is the standard of the ordinary skilled
man exercising and professing to have that special skill. A
man need not possess the highest expert skill; it is well14 (1968) 118 New LJ 469; followed in Postgraduate Institute of Medical Education &
Research v. Jaspal Singh, (2009) 7 SCC 330 : (2009) 3 SCC (Cri) 399 : (2009) 3 SCC (Civ)
114
15 Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582: : (1957) 2 All ER 118
16 (WLR p. 586)
49
established law that it is sufficient if he exercises the
ordinary skill of an ordinary competent man exercising that
particular art.”
[emphasis supplied]
The ratio of the Bolam case is that it is enough for the
doctor to show that the standard of care and the skill
exercised by him was that of an ordinary competent medical
practitioner exercising an ordinary degree of professional
skill. McNair, J., held that17:
“… he [a Doctor] is not guilty of negligence if he
has acted in accordance with a practice accepted as proper by
a responsible body of medical men skilled in that particular
art.”
11.4.6 In the subsequent judgment rendered in
Eckersley v. Binnie18, Bingham, L.J. explained
the Bolam test in the following words: (Con LR p. 79)
“From these general statements it follows that a professional
man should command the corpus of knowledge which forms
part of the professional equipment of the ordinary member of
his profession. He should not lag behind other ordinary
assiduous and intelligent members of his profession in the
knowledge of new advances, discoveries and developments in
his field. He should have such an awareness as an ordinarily
competent practitioner would have of the deficiencies in his
17 (WLR. P 587)
18 (1988) 18 Con LR 1; followed in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 : 2005
SCC (Cri) 1369; S.K. Jhunjhunwala v. Dhanwanti Kaur, (2019) 2 SCC 28
50
knowledge and the limitations on his skill. He should be alert to
the hazards and risks in any professional task he undertakes
to the extent that other ordinarily competent members of the
profession would be alert. He must bring to any professional
task he undertakes no less expertise, skill and care than other
ordinarily competent members of his profession would bring,
but need bring no more. The standard is that of the reasonable
average. The law does not require of a professional man that he
be a paragon combining the qualities of polymath and prophet.
(Charlesworth & Percy, ibid., para 8.04)”
[emphasis supplied]
A medical professional should be alert to the hazards
and risks in any professional task he undertakes to the
extent that other ordinarily competent members of the
profession would be alert. He must bring to any professional
task he undertakes reasonable skill that other ordinarily
competent members of his profession would bring.
11.4.7 This Court followed the Bolam test in Jacob Mathew v.
State of Punjab19 wherein it was held that the Bolam test has
been widely accepted as decisive of the standard of care
required by medical practitioners, and it is invariably cited
with approval before the courts in India, and applied as a
touchstone to test the pleas of medical negligence. The court
51
summed up the law on medical negligence in the following
words:
“48. (1) Negligence is the breach of a duty caused by omission
to do something which a reasonable man guided by those
considerations which ordinarily regulate the conduct of human
affairs would do, or doing something which a prudent and
reasonable man would not do. The definition of negligence as
given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice
G.P. Singh), referred to hereinabove, holds good. Negligence
becomes actionable on account of injury resulting from the act
or omission amounting to negligence attributable to the person
sued. The essential components of negligence are three: ‘duty’,
‘breach’ and ‘resulting damage’.
(2) Negligence in the context of the medical profession
necessarily calls for a treatment with a difference. To infer
rashness or negligence on the part of a professional, in
particular a doctor, additional considerations apply. A case of
occupational negligence is different from one of professional
negligence. A simple lack of care, an error of judgment or an
accident, is not proof of negligence on the part of a medical
professional. So long as a doctor follows a practice acceptable
to the medical profession of that day, he cannot be held liable
for negligence merely because a better alternative course or
method of treatment was also available or simply because a
more skilled doctor would not have chosen to follow or resort to
that practice or procedure which the accused followed. When it
comes to the failure of taking precautions, what has to be seen
is whether those precautions were taken which the ordinary
experience of men has found to be sufficient; a failure to use
special or extraordinary precautions which might have
prevented the particular happening cannot be the standard for
judging the alleged negligence. So also, the standard of care,
52
while assessing the practice as adopted, is judged in the light
of knowledge available at the time of the incident, and not at
the date of trial. Similarly, when the charge of negligence arises
out of failure to use some particular equipment, the charge
would fail if the equipment was not generally available at that
particular time (that is, the time of the incident) at which it is
suggested it should have been used.
(3)A professional may be held liable for negligence on one of the
two findings: either he was not possessed of the requisite skill
which he professed to have possessed, or, he did not exercise,
with reasonable competence in the given case, the skill which
he did possess. The standard to be applied for judging, whether
the person charged has been negligent or not, would be that of
an ordinary competent person exercising ordinary skill in that
profession. It is not possible for every professional to possess
the highest level of expertise or skills in that branch which he
practices. A highly skilled professional may be possessed of
better qualities, but that cannot be made the basis or the
yardstick for judging the performance of the professional
proceeded against on indictment of negligence.
(4)The test for determining medical negligence as laid down in
Bolam case [(1957) 1 WLR 582 : (1957) 2 All ER 118] holds
good in its applicability in India.”
[emphasis supplied]
11.4.8 In recent years, the Bolam test has been discarded by
the courts in England. In Bolitho v. City and Hackney Health
Authority20, a five judge bench of the House of Lords ruled
that21 :
20 (1998) 1 AC 232 : (1997) 3 WLR 1151 : (1997) 4 All ER 771 (HL)
21 (AC pp. 241 G-H and 242 A-B)
53
“… the court is not bound to hold that a defendant doctor
escapes liability for negligent treatment or diagnosis just
because he leads evidence from a number of medical experts
who are genuinely of opinion that the defendant's treatment or
diagnosis accorded with sound medical practice. In the Bolam22
case itself, McNair J. stated that the defendant had to have
acted in accordance with the practice accepted as proper by a “
responsible body of medical men.” Later, .. he referred to “a
standard of practice recognised as proper by a competent
reasonable body of opinion.” Again, in the passage which I
have cited from Maynard's23 case, Lord Scarman refers to a
“respectable” body of professional opinion. The use of these
adjectives—responsible, reasonable and respectable—all show
that the court has to be satisfied that the exponents of the body
of opinion relied upon can demonstrate that such opinion has a
logical basis. In particular in cases involving, as they so often
do, the weighing of risks against benefits, the judge before
accepting a body of opinion as being responsible, reasonable or
respectable, will need to be satisfied that, in forming their
views, the experts have directed their minds to the question of
comparative risks and benefits and have reached a defensible
conclusion on the matter.”
[emphasis supplied]
Lord Browne-Wilkinson, speaking for the bench, in his
opinion stated that despite a body of professional opinion
approving the doctor’s conduct, a doctor can be held liable
for negligence, if it is demonstrated that the professional
opinion is not capable of withstanding logical analysis24:
22 [1957] 1 W.L.R. 583, 587
23 [1984] 1 W.L.R. 634, 639
24 (AC p.243 A-E)
54
“These decisions demonstrate that in cases of diagnosis and
treatment there are cases where, despite a body of professional
opinion sanctioning the defendant's conduct, the defendant can
properly be held liable for negligence (I am not here considering
questions of disclosure of risk). In my judgment that is because,
in some cases, it cannot be demonstrated to the judge's
satisfaction that the body of opinion relied upon is reasonable
or responsible. In the vast majority of cases the fact that
distinguished experts in the field are of a particular opinion will
demonstrate the reasonableness of that opinion. In particular,
where there are questions of assessment of the relative risks
and benefits of adopting a particular medical practice, a
reasonable view necessarily presupposes that the relative risks
and benefits have been weighed by the experts in forming their
opinions. But if, in a rare case, it can be demonstrated that the
professional opinion is not capable of withstanding logical
analysis, the judge is entitled to hold that the body of opinion is
not reasonable or responsible.
[emphasis supplied]
11.4.9 A five judge bench of the Australian High Court in
Rogers v. Whitaker25 identified the basic flaw involved in
approaching the standard of duty of care of a doctor as laid
down in Bolam (supra), and held that:
“5. ….The law imposes on a medical practitioner a duty to
exercise reasonable care and skill in the provision of
professional advice and treatment. That duty is a "single
comprehensive duty covering all the ways in which a doctor is
25 (1992) 109 Aus LR 625: [1992]HCA 58
55
called upon to exercise his skill and judgment" 26; it extends to
the examination, diagnosis and treatment of the patient and the
provision of information.”
“12. In Australia, it has been accepted that the standard of care
to be observed by a person with some special skill or
competence is that of the ordinary skilled person exercising and
professing to have that special skill.27 But, that standard is not
determined solely or even primarily by reference to the practice
followed or supported by a responsible body of opinion in the
relevant profession or trade.28 Even in the sphere of diagnosis
and treatment, the heartland of the skilled medical practitioner,
the Bolam principle has not always been applied.
29 Further,
and more importantly, particularly in the field of non-disclosure
of risk and the provision of advice and information, the Bolam
principle has been discarded and, instead, the courts have
adopted the principle that, while evidence of acceptable medical
practice is a useful guide for the courts, it is for the courts to
adjudicate on what is the appropriate standard of care after
giving weight to "the paramount consideration that a person is
entitled to make his own decisions about his life".
[emphasis supplied]
11.4.10 A seven-judge bench of the U.K. Supreme Court in a
more recent judgment delivered in Montgomery v Lanarkshire
Health Board30 traced the changes in the jurisprudence of
medical negligence in England, and held that “patients are
26 Sidaway v. Governors of Bethlem Royal Hospital [1985] UKHL 1; (1985) AC 871
27 Cook v. Cook [1986] HCA 73; (1986) 162 CLR 376, at pp 383-384; Papatonakis v.
Australian Telecommunications Commission [1985] HCA 3; (1985) 156 CLR 7, at p 36; Weber
v. Land Agents Board (1986) 40 SASR 312, at p 316; Lewis v. Tressider Andrews Associates
Pty. Ltd. (1987) 2 Qd R 533.
28 Florida Hotels Pty. Ltd. v. Mayo [1965] HCA 26; (1965) 113 CLR 588)
29 Albrighton v. Royal Prince Alfred Hospital (1980) 2 NSWLR 542; E v. Australian Red Cross
[1991] FCA 20; (1991) 99 ALR 601)
30 [2015] UKSC 11
56
now widely regarded as persons holding rights, rather than as
the passive recipients of the care of the medical profession”.
The Supreme Court noted that the courts have tacitly ceased
to apply the Bolam test in relation to the advice given by the
doctor to their patients. The Court summed up the law on
medical negligence in the following words:
“82. In the law of negligence, this approach entails a duty on
the part of doctors to take reasonable care to ensure that a
patient is aware of material risks of injury that are inherent in
treatment. This can be understood, within the traditional
framework of negligence, as a duty of care to avoid exposing a
person to a risk of injury which she would otherwise have
avoided, but it is also the counterpart of the patient’s
entitlement to decide whether or not to incur that risk. The
existence of that entitlement, and the fact that its exercise does
not depend exclusively on medical considerations, are
important. They point to a fundamental distinction between, on
the one hand, the doctor’s role when considering possible
investigatory or treatment options and, on the other, her role in
discussing with the patient any recommended treatment and
possible alternatives, and the risks of injury which may be
involved.
87. The correct position, in relation to the risks of injury
involved in treatment, can now be seen to be substantially that
adopted in Sidaway by Lord Scarman, and by Lord Woolf MR in
Pearce, subject to the refinement made by the High Court of
Australia in Rogers v Whitaker, which we have discussed at
paras 77-73. An adult person of sound mind is entitled to
decide which, if any, of the available forms of treatment to
57
undergo, and her consent must be obtained before treatment
interfering with her bodily integrity is undertaken. The doctor is
therefore under a duty to take reasonable care to ensure that
the patient is aware of any material risks involved in any
recommended treatment, and of any reasonable alternative or
variant treatments. The test of materiality is whether, in the
circumstances of the particular case, a reasonable person in the
patient’s position would be likely to attach significance to the
risk, or the doctor is or should reasonably be aware that the
particular patient would be likely to attach significance to it.”
[emphasis supplied]
11.4.11 This Court in V. Kishan Rao v. Nikhil Super Speciality
Hospital31 has opined that the Bolam test requires reconsideration. A.K. Ganguly, J. speaking for this Court,
observed that:
“23. Even though Bolam test was accepted by this Court as
providing the standard norms in cases of medical negligence, in
the country of its origin, it is questioned on various grounds. It
has been found that the inherent danger in Bolam test is that if
the courts defer too readily to expert evidence medical
standards would obviously decline. Michael Jones in his
treatise on Medical Negligence (Sweet and Maxwell), 4th Edn.,
2008 criticised the Bolam test as it opts for the lowest common
denominator. The learned author noted that opinion was
gaining ground in England that Bolam test should be restricted
to those cases where an adverse result follows a course of
treatment which has been intentional and has been shown to
benefit other patients previously. This should not be extended
to certain types of medical accidents merely on the basis of how
31 (2010) 5 SCC 513 : (2010) 2 SCC (Civ) 460
58
common they are. It is felt “to do this would set us on the
slippery slope of excusing carelessness when it happens often
enough” (see Michael Jones on Medical Negligence, para 3-039
at p. 246).
25. Even though Bolam test “has not been uprooted” it has
come under some criticism as has been noted in Jackson &
Powell on Professional Negligence (Sweet and Maxwell), 5th
Edn., 2002. The learned authors have noted (see para 7-047 at
p. 200 in Professional Negligence) that there is an argument to
the effect that Bolam test is inconsistent with the right to life
unless the domestic courts construe that the requirement to take
reasonable care is equivalent with the requirement of making
adequate provision for medical care. In the context of such
jurisprudential thinking in England, time has come for this
Court also to reconsider the parameters set down in Bolam test
as a guide to decide cases on medical negligence and specially
in view of Article 21 of our Constitution which encompasses
within its guarantee, a right to medical treatment and medical
care.
26. In England, Bolam test is now considered merely a “rule of
practice or of evidence. It is not a rule of law” (see para 1.60
in Clinical Negligence by Michael Powers QC, Nigel Harris and
Anthony Barton, 4th Edn., Tottel Publishing). However, as in
the larger Bench of this Court in Jacob Mathew v. State of
Punjab, Lahoti, C.J. has accepted Bolam test as correctly
laying down the standards for judging cases of medical
negligence, we follow the same and refuse to depart from it.”
[emphasis supplied]
59
11.4.12 More recently, this Court in Arun Kumar Manglik v.
Chirayu Health and Medicare (P) Ltd.32 has held that the
standard of care as enunciated in Bolam (supra) must evolve
in consonance with its subsequent interpretation adopted by
English and Indian courts.
11.4.13 Applying the aforesaid principles to the facts of the
present case, Appellant Nos. 2 and 3 viz. Dr. G.S. Kochhar
and Dr. Naveen Jain, the Consultant Paediatricians,
undoubtedly possessed the skill and qualifications of a
Paediatrician, and the baby was placed under their direct
care and treatment from birth till he was 3 ½ months old.
They owed a duty of care to the baby and his parents.
Appellant No.4- Dr. S.N. Jha, the Senior Consultant
Ophthalmologist, who was engaged by the Appellant No.1-
Hospital, and was the specialist in the Ophthalmology
Department, ought to have followed the standard protocol for
screening the Respondent No.1-baby for ROP, which is
prescribed at the chronological age of 3 to 4 weeks after
birth.
32 (2019) 7 SCC 401
60
11.4.14 Appellant Nos.1 to 3 are liable for medical negligence
since at no stage were the parents of Complainant No.1
either advised or guided about the possibility of occurrence of
ROP in a premature baby, nor was the baby examined by
Appellant No.4, the Ophthalmologist as per standard
protocol. The doctors ought to have been fully aware of the
high chances of occurrence of ROP in a pre-term baby. The
lack of care constitutes a gross deficiency in service.
After discharge on 29.04.2005, the baby was brought
on 04.05.2005 at the chronological age of 5 weeks. Even on
this date, no ROP test was either advised or conducted.
The baby was brought for a further follow up check-up
on 13.07.2005, by which time the baby was 3 ½ months
old. Even on this visit, the Appellants did not advise or
guide the Respondent No.2-Complainant to have the ROP
test conducted.
11.4.15 After reviewing the medical literature setting out the
contemporaneous standards and established protocols on
ROP, the reasonable standard of care for a premature baby,
mandates screening and checking up for ROP. It is a
medically accepted position that ROP is a reversible disease,
61
if diagnosed up to Stage 3. Had the ROP test been conducted
by the Appellants, there would have been timely detection of
the onset of ROP, which at that stage would have been
reversible.
On account of the negligence of the Appellants 2 to 4,
the disease remained undiagnosed. It came to be diagnosed
on 03.12.2005, when the baby was 8 months old, by Shroff
Charity Eye Hospital. By this time, the ROP had reached
Stage 5, when it becomes irreversible leading to total
blindness of the Respondent No.1- baby.
11.4.16 We affirm the findings of the National Commission to
hold that the Appellant No.1-Hospital, Appellant Nos. 2 and
3- the Paediatricians, and Appellant No.4 – Dr. S.N. Jha, the
Senior Ophthalmologist, owed a legal duty of care to the
Complainants/Respondents No.1 and 2. The failure to inform
the Respondent No.2-mother of the necessity to have the ROP
test conducted in the case of a pre-term baby, and the high
risk involved which could lead to total blindness, was a
breach of duty. Furthermore, the failure to carry out the ROP
test, which is mandated by standard protocol, while the baby
was under their direct care and supervision from birth till he
62
was 3 ½ months old, amounted to gross negligence by the
Doctors, and deficiency of service by the Hospital. The
consequential damage caused to the baby by not having
conducted the mandatory ROP test, which led to the total
blindess of the baby, has given rise to an actionable claim of
negligence.
11.4.17 It is well established that a hospital is vicariously liable
for the acts of negligence committed by the doctors engaged
or empanelled to provide medical care.
33 It is common
experience that when a patient goes to a hospital, he/she
goes there on account of the reputation of the hospital, and
with the hope that due and proper care will be taken by the
hospital authorities. 34 If the hospital fails to discharge their
duties through their doctors, being employed on job basis or
employed on contract basis, it is the hospital which has to
justify the acts of commission or omission on behalf of their
doctors.
35
33 Savita Garg v. National Heart Institute (2004) 8 SCC 56; Balram Prasad (2014) 1 SCC
384 : (2014) 1 SCC (Civ) 327; Achutrao Haribhau Khodwa v. State of Maharashtra (1996) 2
SCC 634; V. Krishnakumar v. State of Tamil Nadu, (2015) 9 SCC 388 : (2015) 4 SCC (Civ)
546
34 Savita Garg v. National Heart Institute (2004) 8 SCC 56 : (2004) 8 Scale 694
35 Savita Garg v. National Heart Institute (2004) 8 SCC 56 : (2004) 8 Scale 694
63
11.4.18 Accordingly, we hold Appellant No.1-Hospital to be
vicariously liable for the acts of omission and commission
committed by Appellant Nos. 2 to 4. We hold all the
Appellants as being jointly and severally liable to pay
compensation to the Complainants.
11.5 Compensation
11.5.1 Having affirmed the findings recorded by the National
Commission on the question of medical negligence and
deficiency in service by the Appellants, the issue whether
the compensation awarded by the National Commission was
just and reasonable is required to be determined.
The Complainants had claimed Rs. 1,30,25,000/- as
compensation before the National Commission. The National
Commission vide the Impugned Judgment awarded a total
sum of Rs. 64,00,000/- to the Complainants along with
interest.
11.5.2 This Court vide Order dated 06.11.2019 directed the
Appellants to release a sum of Rs.5,00,000/- (Rupees Five
Lakhs) in favour of the Respondent No.2-Complainant from
64
the amount lying deposited by the Appellant No.1-Hospital
in the Court.
This Court further directed the
Complainant/Respondent No.2 to file an affidavit regarding
the education received by the Respondent No.1, and the
level of proficiency he had attained.
11.5.3 Accordingly, the Respondent No.2- Complainant has stated
on affidavit that the Respondent No.1, who is now 14 years
old, was studying in a Government Senior Secondary School
for Blind Boys, Kingsway Camp from 2013 to 2017, and
barely received education for 4 years, up to 5th standard.
The Respondent No.1 was forced to leave school since the
Respondent No.2-Complainant was unable to bear his
educational, co-curricular and transportation expenses. The
father of Respondent No.1, who was working as a security
guard with the Municipal Corporation of Delhi, had expired
in 2013. The Respondent No.2-Complainant stated that she
is currently employed as a part-time receptionist since
2017, and earns Rs. 5,500/- per month as salary, and
receives Rs. 2,500/- per month under the Delhi Vidhwa
Pension Yojna. She further stated that Respondent No.1
65
received Rs. 2,500/- per month under the Delhi
Government’s Scheme for Subsistence Allowance to Persons
with Special Needs.
11.5.4 The grant of compensation to remedy the wrong of medical
negligence is within the realm of law of torts. It is based on
the principle of restitutio in integrum. The said principle
provides that a person is entitled to damages which should
as nearly as possible get that sum of money which would
put him in the same position as he would have been if he
had not sustained the wrong.36
11.5.5 In our considered view, having regard to the finding that the
medical negligence in the instant case occurred in 2005,
and the litigation has been pending before this Court for
over 3 years, coupled with the fact that the additional
monthly expenses such as the care of an attendant/nurse,
educational expenses of the patient in a special school,
assistive devices etc. have not been taken into account, it
would serve the ends of justice if the compensation awarded
36 Livingstone v. Rawyards Coal Co., (1880) LR 5 AC 25 (HL)]; followed in Malay Kumar
Ganguly v. Sukumar Mukherjee, (2009) 9 SCC 221 : (2009) 3 SCC (Civ) 663 : (2010) 2 SCC
(Cri) 299 and V. Krishnakumar v. State of T.N., (2015) 9 SCC 388 : (2015) 4 SCC (Civ) 546;
Balram Prasad v. Kunal Saha, (2014) 1 SCC 384 : (2014) 1 SCC (Civ) 327
66
by the National Commission is enhanced, by a further
lump-sum amount of Rs. 12,00,000 (Rupees Twelve Lakhs).
11.5.6 In conclusion, we pass the following directions to secure the
interest and welfare of Respondent No.1. These directions
are being passed to ensure that the compensation received
is utilized for the welfare of Respondent No.1, to enable him
to acquire suitable education and equip him to become selfreliant.
We direct that the compensation of Rs. 76,00,000/-
awarded to the Respondent No.1- Master Rishabh Sharma
s/o Mrs. Pooja Sharma (in C.A. No. 6619 of 2016), be
utilized in the following manner:
a) Rs. 60,00,000/- (Rupees Sixty Lacs Only) is allocated
exclusively for Respondent No.1- Master Rishabh Sharma
for his education, welfare, and sustenance;
b)Rs. 15,00,000/- (Rupees Fifteen Lacs Only) is allocated to
Mrs. Pooja Sharma, the mother of Master Rishabh Sharma,
as his care-giver, after deduction of an amount of
Rs.5,00,000/- already disbursed to her.;
c) Rs. 1,00,000/- (Rupees One Lac Only) is awarded towards
litigation costs, payable to Mr. Jai Dehadrai, Advocate and 
67
Mr. Sidharth Arora, Advocate, who have represented the
Complainants on a pro bono basis (as stated by them) in
this Court.
11.5.7 The amount of Rs. 60,00,000/- awarded to Master Rishabh
Sharma shall be disbursed in the following manner:
A. Rs. 50,00,000/- be deposited in a Five Years’ Post
Office Time Deposit Scheme in the name of Master
Rishabh Sharma with Mrs. Pooja Sharma as his
natural guardian. Let five deposits in multiples of Rs.
10,00,000/- each be made. The deposits shall be
opened in the Post Office Savings Bank Account of
the Supreme Court Post Office, New Delhi. The
account shall be operated by Mrs. Pooja Sharma
under the supervision of the concerned Registrar of
this Court.
The aforesaid five deposits aggregating to
Rs.50,00,000/- will fetch Master Rishabh Sharma an
annual interest income of Rs.3,85,000/, which will
be credited into a Savings Account with the Post
Office. Out of the said sum, Rs.1,50,000/- shall be
invested annually in a 15 Year Public Provident Fund 
68
(“PPF”) Account to be opened in the name of Master
Rishabh Sharma with UCO Bank, Supreme Court,
Tilak Marg, New Delhi. These yearly investments,
going by the provisions of the Income Tax Act, 1961,
will be tax free.
After having invested Rs.1,50,000/- every
year in a PPF account, the rest of the yearly income
amounting to Rs.2,35,000/- p.a. (from and out of
Rs.3,85,000/-) which is equivalent to about
Rs.20,000/-per month, shall be utilized by
Respondent No.2- Mrs. Pooja Sharma for the
education and upbringing of Respondent No.1.
B. Rs.4,50,000/- shall be deposited in a Five Year Post
Office Monthly Income Scheme Account (“MIS
Account”) with the Supreme Post Office in the name
of Master Rishabh Sharma so that it will give him
monthly interest of 7.6% p.a., that is to say
Rs.2,850/- per month, which shall be utilized by his
Mrs. Pooja Sharma primarily for the upbringing of
Respondent No.1.
69
C. The balance of Rs. 5,50,000/- from the amount
deposited by the Appellants, shall be invested in a
Five Year Fixed Deposit Account (“FD Account”) to
opened with UCO Bank, Supreme Court, Tilak Marg,
New Delhi in the name of Master Rishabh Sharma.
The interest accruing therefrom may be utilized by
Mrs. Pooja Sharma in such manner as is deemed
appropriate.
D. These investments will ensure an annual income of
approximately Rs. 4,50,000/-. With the investment
of Rs. 1,50,000/- in a PPF Account, which will be tax
free, as the annual income of Rs. 3,00,000/- will be
within the permissible tax exemption limit of Rs.
3,00,000/- plus Rs. 75,000/- (Disability Allowance
under Section 80U of the Income Tax Act,1961).
E. All these deposits on maturity shall be re-invested by
Respondent No.2 – Pooja Sharma with the
concurrence of the concerned Registrar of this Court
on such terms, which will fetch a high rate of
interest, and preserve the corpus for the benefit of
Respondent No.1. At no stage, will the Respondent 
70
No.2 be permitted to withdraw any amount from
these deposits without the permission of the
concerned Registrar.
11.5.8 We direct the concerned Registrar of this Court to be
associated with Respondent No.2- the mother of Master
Rishabh Sharma, in giving effect to the directions issued
hereinabove.
12. Accordingly, we allow Civil Appeal No. 9461 of 2019 (Diary
No. 15393 of 2019) filed by the Complainants.
13. Civil Appeal No. 6619 of 2016 filed by the Hospital and the
Doctors is dismissed. The Appellant Nos. 1 to 4 in Civil
Appeal No. 6619 of 2016 are directed to deposit the balance
amount of. Rs. 44,00,000/- in this Court within a further
period of 12 weeks from today.
14. An affidavit of compliance with respect to the deposit of
compensation be filed by the Appellants before this Court.
15. We have been informed by the Registry of this Court that
the amount of Rs. 32,00,000/-, which was deposited by the
Appellants pursuant to Order dated 29.07.2016 of this
Court, and kept in a Fixed Deposit with UCO Bank, has
accrued an interest of about Rs. 3,80,954/-. We direct that 
71
this interest amount be made over to Mrs. Pooja Sharma,
the mother and care-giver, for the welfare and education of
Master Rishabh Sharma, for the current year.
16. The original medical records be returned by the Registry to
the counsel for the Appellant No.1-Hospital.
Pending Applications, if any, are accordingly disposed of.
Ordered accordingly.
…..……...........................J.
(UDAY UMESH LALIT)
..….……..........................J.
(INDU MALHOTRA)
New Delhi
December 16, 2019.