R.C. Deepak, J. - (1.) Heard Sri G.S. Chaturvedi, learned senior counsel assisted by Sri R.C. Upadhyay, learned counsel for the petitioners, Sri V.P. Srivastava and Sri Rajendra Kumar, learned counsel for the respondent No. 2, learned A.G.A. for the State and perused the record including the cases cited by the parties as under : The cases referred by the learned counsel for the petitioners : 1. 2005(3) RCR(Crl.) 836 : 2005(2) Apex Criminal 649 : 2005 SCC (Cri.) 1369 : AIR 2005 Supreme Court 3180, Jacob Mathews v. State of Punjab & another 2. AIR 1960 SC 866 (V 47 C 147), R.P. Kapur v. State of Punjab 3. AIR 1960 Supreme Court 871 (V 47 C 148), The Chairman of the Bankura Municipality v. Lalji Raja Sons 4. 2003(4) RCR(Crl.) 235 : 2004(1) Apex Criminal 467 : (2003)7 SCC 254 : AIR 2003 Supreme Court 3635, Ramesh Chandra Sinha & others v. State of Bihar & others 5. 2004(4) RCR(Crl.) 937 : 2005(1) Apex Criminal 75 : 2005 (25) AIC 379 (SC)) : AIR 2005 SC, M/s. Zandu Pharmaceuticals Works Ltd. & others v. Mohd. Sharaful Haque & others 6. 2005(3) RCR(Civil) 227 : 2005 (25) AIC 385 (SC)) : AIR 2005 Supreme Court 485, Subrarnani & others v. M. Chandralekha
(2.) The cases relied upon by the learned counsel for the respondent No. 2 : 1. 2005(2) RCR(Crl.) 68 : 2005(1) Apex Criminal 537 : 2005 SCC (Cri.) 735 : AIR 2005 Supreme Court 1989, Ramesh & others v. State of Tamil Nadu 2. 1999(2) RCR(Crl.) 828 : (1999)4 SCC 690 : AIR 1999 Supreme Court 2071, Arun Vyas & another v. Anita Vyas 3. 1999(3) SCT 118 : (1999)4 SCC 697 : AIR 1999 Supreme Court 1958, N.S. Giri v. Corporation of City of Manglore & others 4. (2002)3 SCC 156 : AIR 2002 Supreme Court 451, Davinder Pal Sehgal & another v. Pratap Steel Rolling Mills Pvt. Ltd. & Ors. 5. 1984(2) RCR(Crl.) 393 : (1984) SCC (Cri.) 590 : AIR 1984 Supreme Court 1688 : (1984)4 SCC 222, Bhagirath Kanoria & Ors. v. State of M.P. and Raja Bahadur Singh v. Provident Fund Inspector & Ors.
(3.) The subject matter of the writ petition is a disabled boy aged about 10 years named Rishabh. He was born on 10-4-1995 as a normal child. The disability visited him at a later stage of life due to medical negligence of the medico. Some lime particles fell into his left eye at an age of 11/2 years. The child was taken to Dr. Mukesh Khare. He advised immediate operation and on 24-7-1996 the operation was carried out by him in Ojha Nursing Home, Tagore Town, Allahabad. After the operation and the lapse of convalescence period in the private ward of this nursing home, he was discharged. The advice given by Dr. Mukesh Khare at the time of discharge that after 8-9 months in order to keep the eye intact for grafting, another operation is to be undertaken. The treatment continued as per his advice regularly. The ultrasound examination upon him was carried out. He was found perfect, but Dr. Alok Khare, Anesthetist-Petitioner No. 2 observed that the child was anemic and slightly underweight, but the second operation was undertaken in the same nursing home by Dr. Mukesh Khare on 27-2-1997. The misfortune for the boy began from here. During the course of operation the condition of the boy became grave. Another Dr. Mohan Ji was sent for by the nursing home to attend the child. The condition of the child became stable due to his treatment and gradually improved in the course of time, but the child was unable to perform properly. Several doctors of the institution of fame including Dr. Navneet Kumar, an eminent Neurologist of Kanpur, Dr. S.P.S. Chauhan, Senior Neurosurgeon, Medical College, Allahabad, Dr. N.C. Dwivedi, Senior Neurologist, Allahabad, Dr. D. Ghosh, P.G.I., Chandigarh as well as the concerned doctors of the A.I.I.M.S. were consulted. Dr. D. Ghosh diagnosed the patient and opined that there was serious negligence by the attending doctor and the anesthetist. The oxygen was not supplied in time causing 'Hypoxic Ischemic Encephalopathy'. C.T. Scan was also performed upon him. Oadema in brain (brain was swollen) was detected, The opinion of Dr. Chauhan is that there was Diffuse Injury to the Brain which occurred during the course of surgery.;