This is competition in college
Querist :
Anonymous
(Querist) 13 August 2018
This query is : Open
Dear Experts,
I am a student of LLB ( Sem-1 ) and college announced Moot Court Competition then please help me in make arguments on behalf of Applicants ( Doctors ) facts case which is as under...
Moot Problem:
IN THE HIGH COURT OF XXXXXX AT XXXXXXX
DISTRICT: XXXXXXX
CRIMINAL APPEAL NO. XYZ OF 2013
1. Dr. Vyomesh Mishra
2. Dr. Kuldeep Singh Appellants
(On. Accused Nos. I & 2)
Vs.
1. Mahesh Pate!
2. State of Gujarat Respondents.
(Resp. No.1 Original Complainant)
Appeal u/s. 374 of the Code of Criminal Procedure against the judgment and order of the Sessions Court passed in Criminal Case No. ABC of 2009 passed on November 10, 2013.
Facts of the Case:
Mr. Mahesh Pate!, original complainant is a government servant having upper middle class background. He was having wife Madhvi, the only son Keval in his small family. His son was studying in the standard-7-at a reputed English Medium School of xxxxx: Keval was considered to be one of the brilliant students of the class and was also a captain at the school football team.
In May 2009, after having returned from the practice of football from the school in vacation Keval began throwing fits and losing consciousness at sudden intervals. Mahesh Patel, immediately consulted Dr. Kuldeep Singh, a reputed neuro-physician at the Longlife Charitable Trust Hospital. The aforesaid hospital is started by xxxxxx Doctors' Welfare Association having sole motto to provide the best treatment to the patients at the reasonable charges. It has its reputation in the entire city for providing the best treatment.
During examination, Dr. Kupdeep Singh diagnosed that Kevel was suffering from epilepsy. Dr. Kuldeep Singh prescribed treatment involving the administration of two wel-known drugs for epilepsy - Zentor and Gardiol - over a course of 8 months. Keval was also advised to discontinue school for a period of 2-3 months during his treatment. But he was keen to attend the classes at his school. Due to continuous insistence of his son, Mr. Mahesh Patel allowed him to go to the school for attending classes. The medicine prescribed to Keval did not serve its object and hence Dr. Kuldeep Singh increased the dosage and frequency of his prescribed drugs. However, the condition if Keval worsened and the frequency of convulsions grew rapid. As a resultant effect, Keval was constrained to proceed on leave from the school from 16th August 2009.
On August 19, 2009, at about 10.30 pm when Keval had his evening dosage of prescribed drug Gardiol, he developed severe convulsions. He lost his consciousness and collapsed on the bed. Mahesh Patel called Dr. Kuldeep Singh at his residence. Dr. Singh expressed his inability to come, but advised to admit Keval to the Longlife Charitable Hospital. By Thllowing the advise of Dr. Singh, Keval was immediately admitted at the Longlife Charitable Hospital by his parents.
At the night of 19th August 2009, Dr. Vyornesh Mishra, a young doctor pursuing his internship at the hospital was on duty. He examined the patient Keval and directed him to be taken to the ICU. Looking to the critical conditions of the patient, the hospital authorities agreed to provide treatment upon signing a consent form stating that the Hospital shall not be responsible in whole or part for any further future consequences if at all developed to the patient Keval during his treatment at the hospital. Desperate to save his son Keval, Mr. Mahesh Patel was constrained to sign the aforesaid consent form of the Hospital.
Before the complainant Mahesh Patel could appraise Dr. Vyomesh Mishra about the previous case history of Keval and the treatment provided to him, Dr. Vyomesh Mishra administered a sedative called Epitaphenol, a sedative given in case of severe epileptic attack After the application of aforesaid medicine, Mahesh Patel saw his son finding difficult to breath and was gasping for breath. Soon he lost his consciousness. Mahesh Patel desperately called Dr. Mishra to examine his son. Dr. Mishra explained him that it was not unconsciousness, but sleep due to sedative medicine. Being dissatisfied with the explanation Mahesh Patel called Dr. Kuldeep Singh at his residence again at 3.30 am on 20th August 2009 and requested him to come to the hospital to examine his son. But Dr. Kuldeep Singh refused and showed his inability.
At 6.00 am on 20th August 2009, Keval expired in the Hospital. The autopsy revealed myocardial infarction as the cause of death. This was a resultant effect of adverse reaction of Epitaphenol drug w4th Gardial, which was prescribed by Dr. Kuldeep Singh.
On 23" August 2009, Mr. Mahesh Patel lodged an FIR in Crime Register No.IIIXXX/2009 at xxxxxxxx againstboth the peseni appellants 'to having: committed offences punishable under Sections 302, 304 and 304-A of the Indian Penal Code. The charge-sheet was filed after investigation by the Officer in charge at xxxxxx Police Station and the magistrate committed the case to the Sessions Court for trial after framing the charges u/s. 302, 304 and 304-A of the Indian Penal Code.
The learned Sessions Judge by his judgment and order found both the accused persons guilty for having committed offences punishable under section 304 part II of the Indian Penal Code and punished them with rigorous imprisonment for 10 years and fine of Rs. 2 lacs each. Being aggrieved by the judgment and order, the accused persons have preferred appeal under section 374 of the Code of Criminal Procedure before the High Court of Gujarat The appeal is admitted.
Simultaneously, Mr. Mahesh Patel, being father of deceased preferred appeal u/s. 372 of.the Code of Criminal Procedure bearing Criminal Appeal No. PQR/ 2007 before the High Court of Gujarat seeking compensation from the above accused persons who are responsible for the unnatural death of his son. The above appeal is also admitted and Hon'ble High Court passed an order to hear both the above appeals together at the final hearing.
Now-both the appeals have come up for the final hearing.
