TC-45

FACULTY OF LAW (GLS LAW COLLEGE)

INTRA MOOT COURT COMPETITION 2025

MOST RESPECTFULLY SUBMITTED BEFORE THE HON’BLE CHIEF JUSTICE OF INDIA

AND HIS COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. XX OF 2025

(ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) No. XX OF 2025)
(UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA)

IN THE MATTER OF

MRS. SOFIA D’SOUZA……………………………………………………………….…APPELLANT

Versus

DR. RAJIV KUMAR …………………………………………………………………..RESPONDENT

DR. MEENAL SHAH…………………………………………………………………. RESPONDENT
DR. ANIL DESHMUKH……………………………………………………………… RESPONDENT

CRIMINAL APPEAL UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA TO QUASH

AND SET ASIDE THE ORDER OF HIGH COURT OF BHUJARAJ AND RESTORE THE RELIEF
GRANTED BY TRIAL COURT WITH ANY OTHER APPROPRIATE RELIEF

MEMORIAL ON BEHALF OF THE APPELLANT

 MEMORIAL ON BEHALF OF THE APPELLANT

TABLE OF CONTENTS

LIST OF ABBREVIATIONS………………………………………………………………………………3
INDEX OF AUTHORITIES…………………………………………………………………………….….4
STATEMENT OF JURISDICTION………………………………………………………………………..7
STATEMENT OF FACTS……………………………………………………………………….................8
ISSUES RAISED………………………………………………………………………………………….10
SUMMARY OF ARGUMENTS………………………………………………………………………….11
ARGUMENTS ADVANCED…………………………………………………………………………….12
ARGUMENTS ON ISSUE 1……………………………………………………………………………...12
ARGUMENTS ON ISSUE 2……………………………………………………………………………...20
PRAYER…………………………………………………………………………………………….…….30

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LIST OF ABBREVIATIONS

ABBREVIATIONS FULL FORMS

& And

AIR All India Report

HON’BLE Honourable

LR Law Report

SCC Supreme Court Cases

SOP Standardised Operational Protocols

Vs. Versus

i.e. That is

Art. Article

First Information Report

F.I.R

Bharatiya Nyaya Sanhita

BNS

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INDEX OF AUTHORITIES

CASES REFERRED:

SR NO. CASES CITATION PAGE

NO.
1. P.S.R Sadhanantham vs. Arunachalam and (1980) 3 SCC 141 7
Anr.

2. Shri Saurav Jain and Anr. Vs. M/s A.B.P AIR 2021 SC 3673 7
Design and Anr.
3. Chunni Bai vs. State of Chhattisgarh 2025 INSC 577 13
4. Sarabjeet Singh and Anr vs. State of Punjab AIR 2009 SC 2792 14
5. Anda and Ors. vs The State of Rajasthan AIR 1966 SC 148 16
6. Barendra Kumar Ghosh vs. King Emperor 1924-25 LR 40 PC : 16
AIR 1925 PC 1
7. State of Haryana and ors vs Smt. Santra AIR 2000 SC 1888 17
8. Dr. Laxman Balkrishna Joshi vs. Dr. AIR 1969 SC 128 18
Trimbak Bapu Godbole
9. State of Haryana and others vs. Raj Rani AIR 2005 SC 327 18
10. Vinitha Ashok vs. Lakshmi Hospital 2001 (8) SCC 731 26

11. Spring Meadows Hospital vs. Harjol (1998) 4 SCC 26

Ahluwalia
12. Nizam’s Institute of Medical Sciences vs. (2009) 6 SCC 1 21
Prasanath S. Dhanaka and ors.
13. Malay Kumar Ganguly vs. Dr. Sukumar (2009) 9 SCC 221 23
Mukherjee and Ors.
14. V. Kishan Rao vs. Nikhil Superspeciality (2010) 5 SCC 513 25
Hospital and Anr.
15. Samira Kohli vs. Dr. Prabha Manchanda AIR 2008 SC 1385 27
16. Balram Prasad vs Kunal Saha AIR 2013 SC 528 27

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17. Mahi Pal Singh vs. Health and Family 2025 (Unreported) 28
Welfare
18. Association of Medical Superspeciality (2019) SC 8 SCC 28
Aspirants & Residents & Ors Vs. Union of 607
India & Ors
19. Paschim Banga Khet Mazdoor Samity v. (1996) 4 SCC 37 28
State of W.B.

20. Vincent Panikurlangara v. Union of India (1987) 2 SCC 165 : 28

1987 SCC (Cri) 329
21. State of Punjab v. Mohinder Singh Chawla (1997) 2 SCC 83 : 29
1997 SCC (L&S)
294
22. Francis Coralie Mullin v. State (UT of (1981) 1 SCC 608 : 29
Delhi) 1981 SCC (Cri) 212

23. Parmanand Katara vs. Union of India and (1989) 4 SCC 286 29
ors.

STATUTES REFERRED:

➢ The Constitution of India, 1950

➢ Bharatiya Nyaya Sanhita, 2023
➢ Bharatiya Sakshya Adhiniyam, 2023

DICTIONARY:

➢ Black Law’s Dictionary

➢ Oxford Dictionary

BOOKS AND ARTICLES:

➢ The Constitution of India (Deluxe Hardbound Edition)

➢ Textbook on THE BHARATIYA NYAYA SANHITA, 2023 by K D Gaur and Madhu Gaur

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➢ Bharatiya Nyaya Sanhita by JK Verma

➢ Article: The Paradigm shift in India’s Criminal Justice system with the idea of ‘Nyaya’ under BNS

LEGAL DATABASES:

➢ Manupatra
➢ SCC Online
➢ Hein Online
➢ AIJEL
➢ Indian Kanoon

OTHER SOURCES:

➢ MOOT PREPOSITION
➢ ANNEXURE-1 SURGICAL CONSENT FORM
➢ ANNEXURE-2 RELEVANT GOVERNMENT POLICY UNDER DIGITAL INDICA 2.0
➢ CODE OF MEDICAL ETHICS REGULATIONS 2002
➢ Notification of Government of India, Ministry of Health and Family Welfare and National Council
Secretariat
➢ Charter for Patient’s Rights for adoption by NHRC

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STATEMENT OF JURISDICTION

The present appeal has been preferred against judgment and order dated 5th December 2024 passed by the
High Court of Bhujraj in Criminal Appeal whereby, the High Court reversed the conviction and sentence
imposed upon the present respondent by Trial court under Sec. 105 and 106(1) of BNS for seven years and
fine of Rs. 20,00,000 and acquitted the respondents. The present appeal is filed in the Hon’ble Supreme
Court under Article 136 of the Constitution of India.

136. Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave
to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or
made by any court or tribunal in the territory of India.

It is pleaded that Hon’ble Supreme Court should allow this petition as the present case raises novel and
significant legal issue that go beyond the individual dispute. The issue has a nationwide impact affecting
all government and government aided hospitals mandated to use AI-assisted systems. This Court has in the
case of P.S.R Sadhanantham vs. Arunachalam and anr.1held that a private individual can file an SLP
particularly when the State fails to act and public interest requires intervention. Article 136 is a wide
discretionary power that includes built-in procedural safeguards satisfying Article 21 (Right to fair trial).
Article 136 makes the law operational to make it a binding precedent for the future instead of keeping it
vague. In the case by present appellant, it is very much in dispute regarding the government policy and its
application by the doctor in ruthless and negligent manner costing the life of an innocent person. For
ensuring justice, Supreme Court in the case of Shri Saurav Jain and Anr. Vs. M/s A.B.P Design and Anr.2
held that new grounds can be added for the first time if the case involves a question of law which in the
impugned case indisputably is, regarding the misinterpretation by the High Court of Bhujraj and
exonerating the accused and also misinterpreting government policy and refusing to held doctor liable for
medical negligence so it requires this Hon’ble Court’s interference to decide on the point of law and held
the doctor liable. In the present case, Hon’ble Supreme Court need to interfere as the High Court has
violated the principle of natural justice, has acted in violation of the provision of the law and has inferred
wrong conclusions from the evidence.

1 P.S.R Sadhanantham vs. Arunachalam and Anr. (1980) 3 SCC 141

2 Shri Saurav Jain and Anr. Vs. M/s A.B.P Design and Anr. AIR 2021 SC 3673

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STATEMENT OF FACTS

Medical Condition of Mrs. Rita D’Souza

Mrs. Rita D’Souza, a 52-year-old retired school principal, resided in Rajankot, a small town in Bhujraj,
with her husband, Mr. Andrew D’Souza, and daughter, Ms. Sofia D’Souza. She had been diagnosed with
Trigeminal Neuralgia, a chronic facial nerve disorder causing severe facial pain and spasms, and had been
managing the condition for several years. In early July 2020, her symptoms worsened significantly — she
experienced frequent facial spasms, episodes of blackout, and neurological distress. Her local physician
referred her to SGINS in Sonapur, one of the country’s leading AI-integrated neurological centres, for
advanced surgical intervention.

Admission and Consent for Surgery

On 16 July 2020, Mrs. D’Souza was admitted to SGINS for a non-invasive neurosurgical decompression
procedure. The surgical board, led by Dr. Rajiv Kumar, recommended partial automation using the Neuro
Assist-RX to improve surgical precision. She signed a general surgical consent form that mentioned the use
of technology-assisted surgical devices but did not specify the name of the device, its autonomous
functions, limitations, or associated risks. The form stated that the procedure would be under expert
supervision and with safeguards, but no assurance was given regarding the final outcome. The surgery cost
₹15,00,000, which Mrs. D’Souza paid out of pocket. She also held a valid ₹30,00,000 medical insurance
policy with Suraksha Life & Health Assurance Co. Ltd., which included a death benefit clause in the event
of demise during a medical procedure, naming her daughter Sofia as nominee which denied the claim.

The Surgical Incident

The procedure was conducted on 16 July 2020, with the Neuro Assist-RX operating in autonomous mode
and a manual override option available. During the surgery, the AI system allegedly miscalculated the
cranial nerve mapping, resulting in damage to the patient’s brainstem and respiratory centres. When the
surgical team attempted to switch to manual control, the haptic-response console malfunctioned, causing a
delay of approximately 45 seconds before manual intervention could be initiated. This delay was critical,
and despite efforts to stabilise the patient, her condition deteriorated. On the morning of 20 July 2020, Mrs.
Rita D’Souza was declared dead due to complications arising from the surgical incident.

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FIR and Criminal Investigation

On 1 August 2020, Sofia lodged an FIR at Sonapur Police Station against Dr. Rajiv Kumar (Lead
Neurosurgeon), Dr. Meenal Shah (Assistant Surgeon), and Dr. Anil Deshmukh (Anaesthesiologist),
alleging gross medical negligence in the conduct of the surgery. During the investigation, authorities found:
The surgical team had three additional surgeries scheduled on the same day, reducing time for patient-
specific preparation. Standard operating protocols, including detailed pre-operative briefing and final
verification of patient data, were not fully adhered to. Internal audit revealed the Neuro Assist-RX had not
been updated for over three months and was operating on partially synced patient data. Although the system
had passed its last government inspection in March 2020, experts later identified the lack of updates as a
foreseeable risk.

Trial Court Proceedings and Conviction

Following the investigation, a charge sheet was filed under the Bharatiya Nyaya Sanhita, 2023 for: Section
105 – Culpable homicide not amounting to murder. Section 106(1) – Causing death by negligence. On 18
September 2023, the Trial Court in Sonapur held the medical team guilty of grievous medical negligence
and convicted all three doctors under Sections 105 and 106. The court sentenced each accused to seven
years of simple imprisonment and imposed a fine of ₹20,00,000 to cover court expenses, surgical costs, and
compensatory charges.

High Court Appeal and Acquittal

Dr. Rajiv Kumar and his team appealed to the High Court of Bhujraj. On 5 December 2023, the High Court
reversed the conviction, holding: The procedure was conducted under a centrally regulated, government-
mandated AI framework. There was no malicious or rash intent on part of the doctors; the primary cause
was a technological malfunction. However, the Court issued guidelines for AI-assisted surgeries, including:
Enhanced and specific consent disclosures. Regular software update audits. Greater transparency with
patients about AI’s role in their treatment. Ms. Sofia D’Souza filed an appeal before the Hon’ble Supreme
Court of Indica against the High Court judgment.

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ISSUES RAISED

1. WHETHER THE RESPONDENTS ARE LIABLE FOR THE DEATH OF MRS. RITA D’SOUZA
BY CONSTITUTING AN OFFENCE UNDER SECTION 105 AND 106(1) OF BNS?

2. WHETHER CAUSING DEATH BY RELYING UPON AN OUTDATED SYSTEM DATA

WITHOUT FULL DISCLOSURE OR ADHERENCE TO MANDATORY SAFEGUARDS AND
STATUTORY NON-COMPLIANCE AMOUNTS TO CRIMINAL NEGLIGENCE AND MAKES
THE DOCTOR RESPONSIBLE FOR CRIMINAL OFFENCE?

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SUMMARY OF ARGUMENTS

1. WHETHER THE RESPONDENTS ARE LIABLE FOR THE DEATH OF MRS. RITA
D’SOUZA BY CONSTITUTING AN OFFENCE UNDER SECTION 105 AND 106(1) OF
BNS?
The appellant contends that the respondents, as qualified neurosurgeons, owed a heightened duty of
care and knowingly breached it by proceeding with an AI-assisted procedure despite being aware of
the system’s outdated status, incomplete patient data synchronisation, and the heightened risk of fatal
error; such conscious disregard of foreseeable harm fulfils the “knowledge” element under Section
100 BNS, thereby constituting culpable homicide under Section 105, or at minimum, causing death
by negligence under Section 106(1); collective liability arises under Sections 3(5), 3(6), and 3(9) BNS
as each respondent’s omission whether in system preparation, manual override execution, or intra-
operative monitoring directly contributed to the death, and professional authority amplifies
culpability, warranting restoration and enhancement of the trial court’s sentence.

2. WHETHER CAUSING DEATH BY RELYING UPON AN OUTDATED SYSTEM DATA

WITHOUT FULL DISCLOSURE OR ADHERENCE TO MANDATORY SAFEGUARDS
AND STATUTORY NON-COMPLIANCE AMOUNTS TO CRIMINAL NEGLIGENCE AND
MAKES THE DOCTOR RESPONSIBLE FOR CRIMINAL OFFENCE?
The appellant argues that the respondents’ acts amounted to gross criminal negligence by failing to
obtain valid informed consent as mandated by government policy and medical ethics, omitting
disclosure of AI system limitations and non-AI alternatives, and disregarding statutory requirements
for monthly updates, audit logs, and operational checks; these procedural violations removed any
protective shield from the government’s AI mandate, as the mandate presupposes compliance with
safeguards; the failure to act on known risks, delay in manual override, and absence of pre-operative
verification invoke res ipsa loquitur to establish negligence, while legal principles confirm that
reliance on technology does not absolve human operators of personal accountability for preventable
harm under Section 106(1) BNS.

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ARGUMENTS ADVANCED

1. WHETHER THE RESPONDENTS ARE LIABLE FOR THE DEATH OF MRS. RITA
D’SOUZA BY CONSTITUTING AN OFFENCE UNDER SECTION 105 AND 106(1) OF
BNS?

THE APPELLANT RESPONDS TO THE ABOVE ISSUE IN AFFIRMATIVE

The Counsel for the Appellant most humbly submits that:

(1.1) The Appellant seeks to raise a grievance against Respondent Doctor Rajiv Kumar for negligently
and recklessly treating Appellant’s mother without taking any care and caution while using AI
machine and causing her death. Mrs. Rita D’Souza mother of the Appellant had been suffering
from Trigeminal Neuralgia, a chronical facial nerve condition for several years so she was
admitted for a non-invasive neurological decompression procedure and because of several
defaults on the part of doctors she was declared dead on 20th July 2020.

(1.2) It may be noticed that "Trigeminal Neuralgia" is a chronic pain condition affecting the trigeminal
nerve in the face which carries the sensation from the face to the brain. It causes pain in the
mouth and face and also oversensitivity or uncomfortable tingling and burning. It’s most
common in woman aged over 50. Mrs. Rita D’Souza was a 52-year-old retired school principal.
The symptoms of the disease range from mild to severe facial pain often triggered by chewing,
speaking or brushing of teeth or exposure to cold air. The treatment available to alleviate the
debilitating pain may be with combination of medication like anticolvunsants, and nerve pain
medications, injections, surgery and complementary therapies. Generally, if a patient does not
respond to the medication or condition worsens over a period of time, surgical option may have
to be preferred. According to National Institute of Health3 Trigeminal pain is exceptionally
severe. Although the condition is not life threatening, the intensity of pain can be debilitating.
The treatment provides immediate pain relief in up to 90% of patients and has a pain recurrence
rate of 40% at 2 to 3 years post-surgery. If necessary, the procedure can be repeated but death is
very unlikely to happen to which in the present case it creates a very high intensity of doubt on
doctors for not treating patient with care and precaution.

3 (NIH)(.gov)

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(1.3) Also to be taken into account that, the most common and widely used method to treat Trigeminal
Neuralgia is “Gamma Knife Radiosurgery” which has the highest success rate. It means if treated
with acceptable medical standards instead of completely relying on AI, patient’s death was
extremely unlikely. Complete relief is achieved in 70% of the patients while other patients might
retain normal pain. Mortality rate in the case of Trigeminal Neuralgia is less than 0.03% which
creates reasonable suspicion on the part of doctors in the present case for not treating patient with
due care and has shown very irresponsible behaviour. Instead of treating patient with normal
procedures that are adopted a complete reliance was placed on AI machine which was completely
malfunctioned machine and not in a proper state to operate and be used. Even no manual or
expertise was used by doctors to which they have the inherent duty to act and treat the patient.
No one could have ever suspected such outcome of the treatment. Even in ordinary sense, except
life threatening disease, people go to doctors and hospital to get cured or get relief and such result
cannot be expected when no such condition affecting life is at stake. This incident had completely
taken off the trust of people on doctors and has completely traumatised the family of the patient
with such an unusual event and act by Dr. Rajiv Kumar. The cost of most common treatment of
Trigeminal Neuralgia is Gamma Knife Surgery which costs approx. INR 1,00,000 to INR
2,50,000 and this AI costed Mrs. Rita D’Souza INR 15,00,000 after not disclosing her the
device’s limitation and that other alternative with high success rate and low cost is available. It
can be very easily meted out that this was done to extract money out of her pocket without having
any regards to her life.

(1.4) It is admitted fact that the patient Mrs. Rita D’Souza has died and this proves “Homicide”. Once
homicide is proved being committed by the Respondent, the next consideration will be whether
such homicide was “Culpable Homicide”, within the ambit of Section 100 BNS. When a person
performs an act, he is attributed with the “intention to cause” the natural consequences that
follows from the act performed. Doctor Rajiv Kumar (Lead Neurosurgeon) along with Dr.
Meenal Shah (Assistant Surgeon) and Dr. Anil Deshmukh (Anesthesiologist) are liable for
whatever act they does or performs on a patient as they are “deemed to have knowledge” of the
act. There may be situations when the person makes the intention for performing an act known
clearly by oral declaration or otherwise. However, it can be illusive when intention is not clearly
spelt out or discernible, and the same has to be gathered from the surrounding facts and
circumstances and the acts of the accused. This was said by Justice Nongmeikapam Kotiswar
Singh in the case of Chunni Bai vs. State of Chhattisgarh4. In the case at hand too, the malice

4 Chunni Bai vs. State of Chhattisgarh 2025 INSC 577

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intention of doctors can be inferred from their conscious and reckless disregard for the patient’s
safety – they knowingly used an AI system that had not been updated for over three months and
was operating on partially synced patient data. Referring to Section 100 of BNS:
100.“Whoever causes death by doing an act with the intention of causing death, or with the
intention of causing such bodily injury as is likely to cause death, or with the knowledge that he
is likely by such act to cause death, commits the offence of culpable homicide.”
If death is caused in any of these three circumstances, the offence of culpable homicide is said
to be committed. Present case falls in the area of part 3 of sec. 100 which is that doctor had the
knowledge of their act. Death may occur accidentally or unintentionally in doing an act which
may be in itself lawful or unlawful. The essentials are:
(a) there should be death of person in question;
(b) that such act was caused by the act of the accused;
(c) that the accused intended by such act to cause bodily injury as was likely to cause death or
that he knew that such act would be likely to cause death.
It can be easily understood that he had the knowledge of the act done by him. Knowledge can
be imputed from the fact that the doctors were trained neurosurgeons certified under the AI-
MedTech programme, since they were fully aware that operating an outdated Neuro Assist-RX
system with partially synced patient data, skipping mandated audit logs, and bypassing detailed
pre-operative verification significantly increased the risk of critical surgical errors; their
professional expertise and policy training made the foreseeable danger of brainstem or
respiratory system abundantly clear, yet they consciously chose to proceed in autonomous mode
without adequate safeguards, thereby demonstrating that they knew, or ought to have known,
that such conduct could likely result in patient’s death.

(1.5) If the system has not been updated for three-months then there are chances that the AI machine
does not perform its ordinary function. This imputes knowledge of any mishappening in the
smooth treatment of the patient. It is doctor’s liability to verify the data on which the machine
will operate as here it is the case wherein machine was operating on partially synced patient data.
So, as it is the doctor’s liability it can be said that he had knowledge that this can impact patient’s
health. Intent and Knowledge in the ingredients of the section postulate the existence of a positive
mental attitude and his mental condition is the special mens rea necessary for the offence. The
knowledge in the third condition contemplates knowledge of the likelihood of the death of the
person. The Sarabjeet5 case is a case on the point which reiterates that every grown-up man is

5 Sarabjeet Singh and Anr vs. State of Punjab AIR 2009 SC 2792

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presumed to know the natural and probable consequences of his own act. Now the word ‘act’ in
all clauses of sec. 100 denotes not only single act but also a series of acts taken as a single act.
When a number of persons participate in the commission of a criminal act the responsibility may
be individual that is to say, that each person may be guilty of a different offence or all of them
may be liable for the total result produced. This depends on the intention and knowledge of the
participants. From the standpoint of criminal liability under Section 100 of the Bharatiya Nyaya
Sanhita, 2023, each of the three accused doctors is independently and severally liable owing to
distinct breaches of duty amounting to gross medical negligence. Firstly, Dr. Rajiv Kumar, as
Lead Neurosurgeon and head of the surgical team, bore the ultimate responsibility for ensuring
that the Neuro Assist-RX system was updated, patient data was fully synchronised, and that all
mandatory pre-operative verification were completed. His failure to adhere to these obligations
despite statutory and policy requirements under the National Framework for AI Integration in
Public Healthcare (2018), constitutes a direct deviation from accepted medical standards.
Secondly, Dr. Meenal Shah, as Assistant Surgeon, had a professional duty to cross-check cranial
nerve mapping, verify readiness of the AI system, and execute the manual override immediately
upon malfunction. Here inability to act with due promptness, thereby allowing a 45-second delay,
reflects culpable inaction that foreseeably endangered the patient’s life. Thirdly, Dr. Anil
Deshmukh, as Anaesthesiologist, was charged with continuous intra-operative monitoring of
vital signs and coordinating emergency responses; his omission to promptly detect and mitigate
the respiratory centre compromise constitutes a negligent breach of a core, non-delegable duty
of care. Collectively, these omissions operating an outdated system, bypassing complete consent
disclosure, ignoring standard operational protocols, and failing timely intervention form a clear
nexus of causation between their conduct and the resultant death, fulfilling the elements of
culpable homicide not amounting to murder.

(1.6) The subject is then covered by BNS

“Sec.3(5) Whenever a criminal act is done by several persons in furtherance of the common
intention of all, each of such persons is liable for that act in the same manner as if it were done
by him alone.”
“Sec. 3(6) Whenever an act, which is criminal only by reason of its being done with criminal
knowledge or intention, is done by several persons, each of such persons who joins in the act
with such knowledge or intention is liable for the act in same manner as if it were done by him
alone with that knowledge or intention.”

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“Sec. 3(9) Where several persons are engaged or concerned in the commission of a criminal act,
they may be guilty of different offences by means of that act.”
The first and second section create responsibility for the total result. The third section creates
individual responsibility only. Sec. 3(5) and 3(6) requires the existence of the knowledge or intent
in each accused before he can be held liable. Sec. 3(9) provides for different degrees of
responsibility arising from the same criminal act6. Section 3(5) is intended to meet a case in
which it may be difficult to distinguish between criminal act of individual members of a party,
who act in furtherance of a common intention of all, or to prove exactly what part was taken by
each of them. All of them are deemed to be guilty in such case because the presence of an
accomplice gives encouragement, support, protection and confidence to a person actually
engaged in the commission of an illegal act. Accordingly, every person engaged in the
commission of a crime is held responsible by virtue of his or her participation in the criminal act,
even if the particular act was not performed by the one or the other member of the group.7
Respondent’s concerted decision to proceed under such unsafe conditions constitutes a common
intention to perform the act in the manner they did, thereby attracting the operation of sec. 3(5)
BNS, fixing upon each of them independent and equal criminal liability for the resultant death
of Mrs. Rita D’Souza, notwithstanding that the immediate negligent act of one may have been
different from that of the others.

(1.7) Legal position says that to form a crime both the ingredients of “actus reus” and “mens rea”
should be constituted, though “mens rea” can sometimes be inferred from the nature of “actus
reus” which certainly has occurred in the present case. We may now apply these principles to the
facts of the present case. Doctors had special knowledge about the risk due to their position,
training or access to information, they are deemed to have knowledge even if they deny it.
Respondents knew the Neuro Assist RX machine had not been updated for over 3 months. They
knew autonomous AI mode can fail and requires ready manual override. Under Digital Indica
2.0 scheme, Government policy mandated monthly audit logs and submission of quarterly reports
which they have not complied with and that lapse was known to them. Knowledge can be
imputed because doctors were experts in a premier AI integrated centre. These constitute “Lata
culpa aequiparatur” which means gross negligence is equivalent to willful misconduct. Gross
negligence is serious carelessness. They cannot plead ignorance of foreseeable hazards and risks
which were within their exclusive professional competence. As held in Chunni Bai case (supra)

6 Anda and Ors. vs The State of Rajasthan AIR 1966 SC 148

7 Barendra Kumar Ghosh vs. King Emperor, 1924-25 LR 40 PC : AIR 1925 PC 1

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that “It is true that in cases where direct evidence is available that links the accused to the offence,
absence of proof of motive or intention does not preclude conviction of the accused.” In the
instant case facts per se suggests or creates “Absolute liability” on doctors that proving any
mental or physical act is not needed though it can be support and corroborate the case but even
if not proved it does not hamper the case of prosecution and accused Dr. Rajiv Kumar is still held
liable for his conduct.

(1.8) By referring to the latter part of section 100 which states that with the knowledge that he is likely
by such act to cause death, commits the offence of culpable homicide which is exact the same
case of petitioner. So, doctor should be held liable under section 105 BNS which punishes the
offence of culpable homicide and imposes minimum punishment of 5 years which can extend
upto 10 years. Section 105 BNS “Punishment for culpable homicide not amounting to murder.
Whoever commits culpable homicide not amounting to murder, shall be punished with
imprisonment for life, or imprisonment of either description for a term which shall not be less
than five years but which may extend to ten years, and shall also be liable to fine, if the act by
which the death is caused is done with the intention of causing death, or of causing such bodily
injury as is likely to cause death; or with imprisonment of either description for a term which
may extend to ten years and with fine, if the act is done with the knowledge that it is likely to
cause death, but without any intention to cause death, or to cause such bodily injury as is likely
to cause death.” Doctors occupy a position of special authority and fiduciary responsibility
towards their patients, entrusted with the patient’s life, health and bodily integrity. Medical
professionals owe a duty of reasonable, competent and diligent care, and any gross deviation
from this standard is not merely a private wrong but a public wrong deserving deterrence. The
authoritative position of doctors amplifies their accountability because patients have no ability
to supervise, question or intervene during treatment – their safety is entirely in doctor’s hands.
When those in such high-trust positions commit gross negligence resulting in death, maximum
punishment is warranted to serve three purposes: (i) to mark society’s condemnation of the
breach of trust, (ii) to deter other professional from compromising safety standards, and (iii) to
reaffirm the legal principle that higher the duty, the graver consequences for its breach. So
punishment of trial court regarding 7 years of simple imprisonment with fine of 20 lakh for court
expenses and other costs should be increased to 10 years with rigorous imprisonment and fine
should also be increased to maximum amount which is suitable with the compensation. In
Santra8, this Court held the doctor liable for negligent act in performing unsuccessful tubectomy

8 State of Haryana and ors vs Smt. Santra AIR 2000 SC 1888

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operation and so a sum of Rs. 54,000 was decreed with the interest at the rate of 12. Fine should
also be imposed because the petitioner after suffering huge loss of the dearest member of family
has suffered to the longest for getting the relief till apex court to which no regards has been shown
by the responsible doctor in the present matter. Such a course would serve the dual purpose of
securing justice in the present matter and preventing recurrence of similar tragedies in the future.

(1.9) On the other hand, Section 106 of Bharatiya Nyaya Sanhita, 2023 carves out a specific offence
where death is caused by doing a rash or negligent act. “106. Causing death by negligence. (1)
Whoever causes death of any person by doing any rash or negligent act not amounting to culpable
homicide, shall be punished with imprisonment of either description for a term which may extend
to five years, and shall also be liable to fine; and if such act is done by a registered medical
practitioner while performing medical procedure, he shall be punished with imprisonment of
either description for a term which may extend to two years, and shall also be liable to fine.”
This provision covers situation where death is caused without intention but due to rashness which
is acting with disregard to obvious risks or negligence such as failure to take reasonable care.
The consequence of lapses by doctor was fatal, and the causal chain between the negligence and
the death is direct and unbroken. In criminal jurisprudence, negligence need not be intentional to
attract liability under Section 106; a high degree of carelessness suffices. To bring a case of
homicide under sec 106 BNS the following conditions must exist, viz., 1. There must be death
of the person in question; 2. The accused must have caused such death; and 3. That such act of
accused was rash or negligent and that it did not amount to culpable homicide. The explanation
clause to sec. 106(1) provides that “registered medical practitioner” means a medical practitioner
who possess any medical qualification recognised under the National Medical Commission Act,
2019 (30 of 2019) and whose name has been entered in the National medical register or a state
medical register. In Dr. Laxman Balkrishna Joshi vs. Dr. Trimbak Bapu Godbole9, this Hon’ble
Court established “The tripartite duty of care resting upon the medical practitioners: (i) a duty in
deciding whether to undertake the case, (ii) a duty in deciding what to give, and (iii) a duty in
administering that treatment. A breach in any one of these stages constitutes actionable
negligence. Here, the Respondents breached all three – undertaking a risky AI assisted procedure
without due evaluation of safer alternatives, selecting an outdated system despite known update
lapses, and administering the surgery without timely manual override. This cumulative breach
amplifies the gross negligence already established under Sections 105 and 106(1) BNS.” In State

9 Dr. Laxman Balkrishna Joshi vs. Dr. Trimbak Bapu Godbole AIR 1969 SC 128

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of Haryana and others vs. Raj Rani10 it was held that “if a child is born to a woman even after
she had undergone a sterilization operation by a surgeon, the doctor was held liable because a
child was born after the sterilization operation and the surgeon was held to be liable for
negligence.” All ingredients of sec. 106(1) stands satisfied - there was a rash and grossly
negligent act, directly causing the death of Mrs. Rita D’Souza. This is not a case of unavoidable
accident. It is a case where foreseeable risks were ignored, statutory duties breached, and life lost
due to preventable human error. Under Section 106(1) BNS, such conduct warrants criminal
sanction.

(1.10) Therefore, it is apparent that the respondent did such a high degree of negligence while dealing
with the case of the deceased which in the facts and circumstances no medical professional in his
ordinary senses and prudence would have done. The evidence on record leaves no room for doubt
that the accused, with full awareness of the probable consequences engaged in an act inherently
hazardous to human life. The hazard taken by respondent was of such a nature the occurrence of
a death was most likely imminent. The respondent has not exercised the skill with reasonable
competence and did not adopt the practice acceptable to the medical profession. The accused
chose to ignore the certainty, thereby crossing the threshold from mere negligence to culpability
under the criminal law. In such circumstances, the law mandates that they be held fully
answerable for the fatal consequence their action set in motion.

10
State of Haryana and others vs. Raj Rani AIR 2005 SC 3279

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2. WHETHER CAUSING DEATH BY RELYING UPON AN OUTDATED SYSTEM DATA

WITHOUT FULL DISCLOSURE OR ADHERENCE TO MANDATORY SAFEGUARDS
AND STATUTORY NON-COMPLIANCE AMOUNTS TO CRIMINAL NEGLIGENCE
AND MAKES THE DOCTOR RESPONSIBLE FOR THE CRIMINAL OFFENCE?

THE APPELLANT RESPONDS TO THE ABOVE ISSUE IN AFFIRMATIVE

The Counsel for the Appellant most humbly submits that:

(2.1) “We have not lost faith, but we have transferred it from God to Medical Profession” – George
Bernard Shaw. A common man treats the doctor as ‘Dhanvantari’. He has tremendous amount
of confidence on the doctor. The comforting and reassuring words of the doctor are very powerful
and sometimes it creates miracle for the patients and strengthen them to fight from within. That
is why doctors should shoulder their responsibility with all care and caution, rise to the occasion,
believe in hard work and discipline and behave with all sensibility not thinking only of their
Everestian interest amassing huge wealth burying large collective interest of common men which
would strengthen the doctor-patient relationship.

(2.2) The consent form signed by Mrs. Rita D’Souza for operation was a general consent form and did
not meet the specific, stringent requirements set forth by the law and the Government’s own
policies regarding AI assisted surgeries. The Ministry of Health and Family Welfare (MoHFW),
in collaboration with the National Human Rights Commission (NHRC), has adopted a Charter
of Patient’s Rights. This document, intended for adoption by all healthcare institutions, explicitly
states in clause 4 that “Every patient has a right that informed consent must be sought prior to
any potentially hazardous test/treatment.” It further specifies that this information should be
provided in a “simple and intelligible language” and the doctors have a duty to explain the “main
risks that are involved in the procedure.” The National Medical Commission (NMC), formerly
the Medical Council of India (MCI), outlines the ethical and professional conduct for doctors.
These regulations, specifically in the context of medical procedures, implicitly demand a high
standard of disclosure. Although a direct quote about “AI” is not available as the document
predates widespread “AI” use in medicine, the spirit of the code underscores the necessity for
doctors to not only obtain consent but to do so with due diligence and transparency.

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(2.3) A patient’s consent is only valid if it is free, voluntary and informed. This requires a full and
clear disclosure of all relevant information, including the risks, benefits, and alternatives of a
procedure. In the instant case, Mrs. Rita D’Souza’s consent was far from informed. In the consent
form Mrs. Rita D’Souza signed was a generic document that merely stated that a procedure would
involve a “technology-assisted surgical device.” This vague language is completely inadequate.
It fails to inform the patient about the specific nature of the AI system, its capabilities, or, most
critically, its limitations and potential risks. The very policy that mandated the use of AI
Integration in Public Healthcare (2018), explicitly requires that all consent forms “shall include
clear disclosure regarding the deployment of AI technology, its specific role in surgical or
diagnostic process, and the extent of human supervision available.” The consent form used by
SGINS for Mrs. Rita D’Souza’s surgery fails to meet these criteria. The form’s lack of specific
details about the Neuro Assist-RX machine’s limitations is a direct violation of this Government
mandate as specified in Annexure 2 clause 3. The institution itself was required to provide such
information, and its failure to do so demonstrates a clear procedural lapse. The most egregious
oversight is the failure to inform Mrs. Rita D’Souza about the device’s limitation. This critical
information, which directly contributed to her death, was never disclosed. A patient has the right
to know if a machine, even a certified one has known vulnerabilities or a history of delayed
responses. Had Mrs. D'Souza been made aware of this risk, she may have chosen the non-AI
alternative, a right guaranteed under the same national policy Annexure 2 clause 9. Because Mrs.
Rita D'Souza's consent was not valid, the entire procedure was performed without her true,
informed authorization. This lack of informed consent is a fundamental breach of medical ethics
and legal duty. It cannot be excused by the argument that the AI system was centrally regulated
or government-mandated. A mandate to use a technology is not a license to bypass the
fundamental right of a patient to be fully informed before a procedure. The High Court's decision
to reverse the conviction failed to consider the grave consequences of this procedural lapse.
Furthermore, the doctors, as the primary agents, had an independent duty to ensure that the
patient was properly informed. The fact that standard operational protocols such as a detailed
pre-operative briefing and final cross-verification of patient data were not fully adhered to by the
surgical team further solidifies the claim that there was no disclosure of relevant defects. In
Nizam’s Institute of Medical Sciences vs. Prasanath S. Dhanaka and ors. 11, this court held that
the absence of specific, informed consent especially for high-risk procedures constitutes
negligence per se. Here, Rita D’Souza was made to sign a generic consent form without
disclosure of the AI system’s outdated status, the risk of manual override delay, or the availability

11 Nizam’s Institute of Medical Sciences vs. Prasanath S. Dhanaka and ors. (2009) 6 SCC 1

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of safer, established alternatives like Gamma Knife Radiosurgery. The omission mirrors the
negligence in Nizam’s Institute, rendering the consent void and surgery unlawful. The consent
form was a mere formality that provided no meaningful information to Mrs. D'Souza and
therefore cannot be considered valid. This systemic failure, beginning with an invalid consent,
directly contributed to her tragic and avoidable death. Therefore, appellant respectfully prays that
the conviction under sec. 105 and 106(1) be restored along with appropriate sentencing.

(2.4) The Appellant further submits that the Respondents' failure to comply with the government
policies annexed to the filing constitutes a grave breach of both medical and legal standards.
These policies, while functioning as guidelines, are issued by the government and thus carry the
force of law, especially within a highly regulated field like public healthcare. The violation of
these policies is not a mere procedural irregularity but a failure to abide by a statutory framework,
thereby raising a serious question of law that warrants the Supreme Court's jurisdiction. While
the policy mandated AI adoption in clause 1, it did not supersede the fundamental duty of care
or the requirement for a valid consent. The National AI Policy does not grant blanket immunity
to doctors. The mandate was to adopt systems, but the implementation still had to be in line with
all other policies, which was not the case here. The failure of Dr. Rajiv Kumar and his team to
adhere to specific clauses of the National Framework for AI Integration in Public Healthcare
(2018) policy constitutes a significant deviation from established protocols. These lapses
demonstrate a clear case of professional negligence, which is central to their culpability in Rita
D’Souza's death. In Government policy Annexure 2 clause 2 states that “Hospitals are required
to maintain monthly audit logs reflecting software update records, system errors, override events,
and performance summaries.” It mandates that the hospital must maintain monthly audit logs of
software updates, system errors, override events and performance summaries. Compliance with
such policy obligation is directly linked to patient safety, as it ensures timely identification of
glitches, outdated system and software malfunctions facts central to this case. Regular audit logs
are meant to foresee and prevent malfunction such as delayed manual override responsiveness,
system malfunction in nerve mapping, data desynchronization from patient records. Given the
nature of neurosurgical procedures, failure to maintain and monitor these logs increased the risk
of a life-threatening incident making the harm foreseeable under the “reasonable man” test
applied in criminal negligence cases. It also requires the submission of quarterly reports to the
Digital Health Oversight Cell. The internal audit revealed that the "Neuro Assist-RX" system
had not been updated for over three months and was operating on partially synced patient data.
This directly violates the policy's requirement for monthly audits and updates. The surgical

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team's failure to ensure the system was current and properly synced is a critical omission. This
oversight is not a minor administrative error; it's a fundamental breach of a safety protocol
designed to prevent exactly this type of incident. A reasonable and prudent medical professional
would have ensured the surgical equipment especially one operating in an autonomous mode was
fully updated and verified before a critical procedure. This failure to maintain the system as
mandated, and proceeding with a surgery under these conditions, points to a clear case of criminal
negligence under Section 106(1) of the BNS, as it demonstrates a failure to exercise the
reasonable and competent care expected of medical professionals. The investigation's finding
that this oversight was "foreseeable" underscores that the risk was identifiable and could have
been mitigated. In Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee and Ors. 12, the Court
upheld substantial liability for doctors whose failure to adhere to known protocols led to a
patient’s death, emphasizing that “ignorance of standard practice in the face of established
guidelines is itself gross negligence.” Here, the NDHM and Digital Indica 2.0 frameworks
mandated monthly AI audits and informed consent protocols both ignored making the
respondents’ conduct squarely fall within the principle in Malay Kumar Ganguly.

(2.5) In Annexure 2, Clause 9 is regarding Transparency and Right to Decline AI Treatment. It

stipulates that institutions must be transparent about the AI systems deployed and that patients
shall be offered a medically feasible non-AI alternative and retain the right to decline AI-assisted
interventions. The fact is that Dr. Kumar's board recommended partial automation, and Rita
signed a general consent form. She was not offered or informed about a "medically feasible non-
AI alternative." The lack of specific details in the consent form (as per Clause 3) also implies
that the transparency required by this clause was not fully met. This is a breach of a patient's
fundamental right to informed choice. While the decision to use the AI was a recommendation,
the policy mandates that the patient must have the option to decline. Doctors did not provide
specific details regarding device’s limitation which nullifies the defence of consent. By not fully
informing Rita and offering her a non-AI alternative, the medical team acted against the spirit
and letter of the policy, which aims to ensure patient autonomy. This lack of informed choice
and the entire process was conducted with a degree of professional negligence that led to a tragic
outcome. It raises serious questions about whether the doctors viewed the policy as a mandatory
guideline or a mere suggestion, further proving their culpability. Hence as informed consent, a
key legal and ethical requirement, was absent it renders the entire procedure legally flawed and
indicative of negligence. The respondents seek to rely on the Digital Indica 2.0 mandate as a

12
Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee and Ors. (2009) 9 SCC 221

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shield against individual liability. The appellant submits that such reliance is misconceived. The
policy offers conditional protection where there is no gross negligence and all procedural
safeguards are followed. Interalia stating, The AI was not updated, Standardised Consent
Protocols (SOPs) were not fully executed, Consent was inadequately obtained. These lapses take
the matter out of the protective umbrella of the policy. Compliance was not impossible; it was
neglected. The mandate does not exempt professionals from their personal responsibility. The
surgical team is the ultimate custodian (guardian) of the patient’s safety. The AI is a surgical
tool; its improper preparation or use is attributable to the operator. The operator cannot shift
blame to the manufacturer when regulatory maintenance protocols were disregarded. Thus, even
though the AI performed autonomously, the failure to create safe operational conditions
constitutes human negligence.

(2.6) Rash in proceeding with surgery without proper checks and despite having multiple surgeries
scheduled that day indicates divided attention and corroborates non fulfillment of duty in a
standard manner. Reliance on AI-autonomous system with manual override does not absolve
human accountability. Technology Cannot Replace Clinical Judgment. Even if the machine
malfunctioned, it was under human command and deployed without adequate safeguards. There
was No disclosure of known risks associated with AI malfunction. As mandated under clause 9
of Government policy patients shall be offered a medically feasible non-AI alternative, where
available, and retain the right to decline AI assisted interventions. Shocking to believe, but none
of this was complied with. There was huge error by not providing the alternative remedy which
was available and the patient Rita D’Souza was kept under the false belief and consent was taken.
Such erroneous consent shall not be tenable and considered void consent to prevent such huge
mishap occurring again and again. As a doctor it was the duty of the respondent to explain the
deceased or at least the complainant, chances of success and the risk of failure of the suggested
treatment and inform them about the foreseeable risks and possible negative effects of the
treatment keeping in mind the patient’s specific condition.

(2.7) The Hon’ble High Court of Bhujraj issued guidelines on AI integrated surgeries, emphasizing
enhanced consent protocols, routine software audits and increased transparency with patients
which strongly suggests that it is an indirectly admitted fact by the HC that there was procedural
lapse and fault on part of doctors using machine. It is an apparent reckless act that the medical
professionals using AI technology and relying on such technology with manual override option
were negligent. In Annexure 1 consent form second para it specifically stated the procedure may

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involve the use of specialized tools and system which was to surgical accuracy and patient safety.
Also, they are to be used under expert supervision with appropriate safeguards in place to which
neither was being complied of. There were no appropriate safeguards if there is Automation
failure no instant manual override was done by the surgeons which is quiet gross irresponsible
act which cannot be sustainable when there is question of life and death of a person and Article
21 is violated by such gross negligent act which is nothing but active euthanasia which is illegal
in India. There was no compliance with the protocols to be maintained such as monthly audit
logs reflecting software update records, system errors, override events, and performance
summaries which is outrightly mentioned in Government Policy to comply. Any prudent person
would not expect that instead of getting cured death would happen when the condition is not life
threatening. This is the instance of absolute fault on part of doctor that they did not take
reasonable care and precaution and not did manual override on time. Their mistake of not
updating AI machine for 3 months had taken away the precious life of someone.

(2.8) “Res ipsa loquitur” is a rule of evidence which means that the mere occurrence of some types of
accident is sufficient to imply negligence. Inference as to negligence may be drawn from proved
circumstances by applying the rule if the cause of the accident is unknown and no reasonable
explanation as to the cause is coming forth from the defendant. In the instant case, Internal audit
revealed that the machine had not been updated for 3 months which is a controllable procedural
lapse. Such a death in routine AI assisted decompression surgery does not occur without
negligence. Failure to fully adhere to pre operative briefing and cross verification of data shows
lack of due care. Death occurred due to a malfunction of the AI assisted surgical device (Neuro
Assist-RX), which miscalculated cranial nerve mapping. The surgery was expected to be safe
and being performed in a premier government institution with certified systems. Such an
outcome (death from malfunction in a regular, routine surgery) would not ordinarily happen
without negligence either human or institutional. The machine malfunction or override failed due
to glitch and outdated software, these were factors entirely within the hospital’s control. The
machine was capable of both autonomous and manual operations so doctors could have protected
her and saved her if they had not shown their irresponsible behaviour towards the patient.
Conclusively it is apparent on the face of the situation that there was negligence and the incident
itself shows that the liability is attracted by doctors and it falls within the ambit of section 105
and 106(1) BNS which talks about causing death by negligence and so the accused (present
respondent) should bear the consequence and face the maximum punishment that this court can

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grant. In V. Kishan Rao vs. Nikhil Superspeciality Hospital and Anr.13, the Supreme Court
applied the doctrine of res ipsa loquitor to medical negligence, holding that when negligence is
apparent from the facts, no expert opinion is necessary. In the present case, the very occurrence
of death in routine decompression surgery coupled with the admitted three-month lapse in
software updates and a failure to execute a timely manual override speaks for itself. The
negligence is res ipsa loquitor in its purest form, negating any defence that the outcome was an
unforeseeable accident.

(2.9) In the celebrated judgment of Vinitha Ashok vs. Lakshmi Hospital 14, this Court after referring
to Bolam, Sidaway and Achutrao case, clarified: "A doctor will be liable for negligence in respect
of diagnosis and treatment in spite of a body of professional opinion approving his conduct where
it has not been established to the court's satisfaction that such opinion relied on is reasonable or
responsible. If it can be demonstrated that the professional opinion is not capable of withstanding
the logical analysis, the court would be entitled to hold that the body of opinion is not reasonable
or responsible.” In the law of negligence, this approach entails a duty on the part of doctors to
take reasonable care to ensure that the 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 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 risk of injury which may be involved. The Supreme Court has consistently held
that criminal negligence is the “gross and culpable neglect or failure to exercise reasonable care,
where such failure has a high degree of likelihood of causing death.” In Spring Meadows Hospital
vs. Harjol Ahluwalia15, this court held that “Both the hospital and the treating doctors are
vicariously liable for acts of negligence by the medical team.” The Neuro Assist RX system was
hospital property, deployed under its aegis and supervision. The failure to ensure compliance
with mandatory monthly audits, to update the AI system, and to provide adequately trained
operators is squarely attributable to the institution. The present case thus engages both personal
and institutional criminal liability, as in Spring Meadows.

13 V. Kishan Rao vs. Nikhil Superspeciality Hospital and Anr. (2010) 5 SCC 513
14 Vinitha Ashok vs. Lakshmi Hospital 2001 (8) SCC 731
15 Spring Meadows Hospital vs. Harjol Ahluwalia (1998) 4 SCC 39

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(2.10) In the celebrated judgment of Samira Kohli vs. Dr. Prabha Manchanda16 has held that “While
negligence is an omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs, would do, or doing
something which a prudent and reasonable man would not do; criminal negligence is the gross
and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard
against injury either to the public generally or to an individual in particular, which having regard
to all the circumstances out of which the charge has arisen, it was the imperative duty of the
accused person to have adopted.” Medical Professionals are Absolutely liable for outcomes of
systems they operate. Setting aside the conviction sends a dangerous signal that use of AI is a
shield against accountability. Patients in government hospitals are guinea pigs in experimental
technology. This ruling contradicts the fundamental right to life and medical safety under Article
21 of the Constitution. The surgical team, being certified AI-medtech practitioners, cannot claim
ignorance of regulatory requirements. Recklessness is evident from the fact that, despite known
update deficiencies, the system was engaged in autonomous mode for a high-risk neurological
surgery.

(2.11) The High Court’s reasoning that the incident was a “technological failure” is legally
unsustainable. Law requires that responsibility be fixed upon those who materially contributed
to the harm. Criminal negligence does not require animus nocendi (intention to harm). The
absence of malicious intent is irrelevant; what matters is breach of duty leading to death.
Vigilantibus et non dormientibus jura subveniunt which means that the law assists those who are
vigilant, not those who sleep. The respondents’ inaction despite knowledge of update schedules
constitute actionable negligence. While the manufacturer may have separate civil liability, the
immediate criminal liability remains with the operators who used the defective system without
taking preventive steps. In the case of Balram Prasad vs Kunal Saha17 the number of medical
negligence cases against doctors, hospitals and nursing homes in the consumer forum are
increasing day by day. The right to health of a citizen is a fundamental right guaranteed under
Article 21 of the Constitution of India. All the government hospitals, nursing homes and
polyclinics are liable to provide treatment to the best of their capacity to all the patients. The
doctors, hospitals, the nursing homes and other connected establishments are to be dealt with
strictly if they are found to be negligent with the patients who came to them pawning all their

16 Samira Kohli vs. Dr. Prabha Manchanda AIR 2008 SC 1385

17 Balram Prasad vs Kunal Saha AIR 2013 SC 528

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money with the hope to live a better life with dignity which not only forms their fundamental
right but also their human right. The patients irrespective of their social, cultural and economic
background are entitled to be treated with dignity which not only forms their fundamental right
but also their human right. The court therefore hope and trust that this decision would act as a
deterrent and a reminder to those doctors, hospitals, nursing homes and other connected
establishments who do not take their responsibility seriously. The Centre and State governments
may consider enacting laws where there is absence of one for effective functioning of the private
hospitals and nursing homes. Since the conduct of doctors is also regulated by the Medical
Council of India, an impartial and strict scrutiny from the body is expected. Finally, it is expected
that the institutions and individuals providing medical services to the public at large educate and
update themselves about any new medical discipline and rare disease so as to avoid tragedies
such as the instant case where a valuable life could have been saved with a little more awareness
and wisdom on the part of the doctors and hospital.

(2.12) In this context, I may also allude to a recent judgment of Mahi Pal Singh vs. Health and Family
Welfare18, in which it was held that The Article 21 of the Constitution of India imposes an
obligation on the State to safeguard the right to save life of every citizen. The aforesaid aspect of
the matter has been taken into consideration by the Hon’ble Apex Court in the judgment rendered
in Association of Medical Superspeciality Aspirants & Residents & Ors Vs. Union of India &
Ors19, wherein, the Hon’ble Apex Court has been pleased to hold that it is the duty of the State
to secure health of its citizen as its primary duty. Right to health is integral to right to life and the
Government has a constitutional obligation to provide health facilities. For ready reference,
paragraph 22, 25 and 26 are quoted as under: "22. Article 21 of the Constitution of India imposes
an obligation on the State to safeguard the right to life of every person. Preservation of human
life is thus of paramount importance. The government hospitals run by the State and the Medical
Officers employed therein are duty-bound to extend medical assistance for preserving human
life. Failure on the part of a government hospital to provide timely medical treatment to a person
in need of such treatment results in violation of his right guaranteed under Article 21 of the
Constitution20. Therefore, in a welfare State it is the obligation of the State to ensure the creation
and the sustaining of conditions congenial to good health21. 25. It is for the State to secure health
to its citizens as its primary duty. No doubt the Government is rendering this obligation by

18 Mahi Pal Singh vs. Health and Family Welfare 2025 (Unreported)
19 Association of Medical Superspeciality Aspirants & Residents & Ors Vs. Union of India & Ors (2019) SC 8 SCC 607
20
Paschim Banga Khet Mazdoor Samity v. State of W.B., (1996) 4 SCC 37
21 Vincent Panikurlangara v. Union of India (1987) 2 SCC 165 : 1987 SCC (Cri) 329

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opening government hospitals and health centres, but in order to make it meaningful, it has to be
within the reach of its people, as far as possible, to reduce the queue of waiting lists, and it has
to provide all facilities to employ best of talents and tone up its administration to give effective
contribution, which is also the duty of the Government. 26. Right to health is integral to the right
to life. Government has a constitutional obligation to provide health facilities22 . The fundamental
right to life which is the most precious human right and which forms the ark of all other rights
must therefore be interpreted in a broad and expansive spirit so as to invest it with significance
and vitality which may endure for years to come and enhance the dignity of the individual and
the worth of the human person. The right to life enshrined in Article 21 cannot be restricted to
mere animal existence. It means something much more than just physical survival. The right to
life includes the right to live with human dignity and all that goes along with it, namely, the bare
necessaries of life such as adequate nutrition, clothing and shelter, and facilities for reading,
writing and expressing oneself in diverse forms, freely moving about and mixing and
commingling with fellow human beings. Every act which offends against or impairs human
dignity would constitute deprivation pro tanto of this right to live and the restriction would have
to be in accordance with reasonable, fair and just procedure established by law which stands the
test of other fundamental rights23." Preservation of human life is of paramount importance. The
State is under an obligation to ensure timely medical treatment to a person in need of such
treatment and a negation of the same would be a violation of Article 21 of the Constitution of
India. SGINS is a government affiliated institution and still doctors not following basic Right to
Life principle is clear cut sending the wrong message to people. In Parmanand Katara vs. Union
of India and ors.24, this Hon’ble Court recognised that “the constitutional obligation of every
doctor public or private is to preserve life, holding that delay or omission in providing life saving
care violates Article 21.” The respondents delay in manual override and their reliance on an
outdated AI system in a life critical moment are antithetical to this duty, compounding their
criminal negligence.

22
State of Punjab v. Mohinder Singh Chawla (1997) 2 SCC 83 : 1997 SCC (L&S) 294
23
Francis Coralie Mullin v. State (UT of Delhi) (1981) 1 SCC 608 : 1981 SCC (Cri) 212
24 Parmanand Katara vs. Union of India and ors. (1989) 4 SCC 286

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 MEMORIAL ON BEHALF OF THE APPELLANT

PRAYER

IN THE LIGHT OF FACTS PRESENTED, ISSUES RAISED, ARGUMENTS ADVANCED AND

AUTHORITIES CITED, THE COUNSEL ON BEHALF OF THE APPELLANT HUMBLY PRAYS
BEFORE THE HON’BLE SUPREME COURT THAT IT MAY BE PLEASED TO:

1. Set aside the order of the High Court of Bhujraj dated 5th December 2023.
2. Restore the conviction of the respondents under Sections 105 and 106(1) BNS and sentence
respondents to the maximum punishment of ten years and fine of 20 lakhs or more amount with
compensation under section 395 of BNSS.

AND/OR

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

FOR THIS ACT OF KINDNESS OF YOUR LORDSHIP, THE RESPONDENTS AS DUTY

BOUND SHALL FOREVER PRAY.
ALL OF WHICH IS HUMBLY PRAYED
COUNSEL FOR THE APPELLANT

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