Bombay High Court
Ujwala Shrikant Zamare vs State Of Mah on 14 October, 2025
2025:BHC-AUG:29164
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.746 OF 2004
Sou. Ujwala w/o Shrikant Zamare
Age : 45 years, Occu: Medical Practitioner,
R/o Shivajinagar, Parbhani, Dist. Parbhani.
...Appellant/ accused
-VERSUS-
1. The State of Maharashtra.
2. The Collector, Parbhani,
District Parbhani.
3. Bhimrao s/o Narhari Narwade,
Age : 44 years, Occu: Service as
Junior Clerk in District Court
Parbhani.
R/o Hudco Colony, Parbhani,
District Parbhani. ...(Orig. Complainant)
...RESPONDENTS
AND
CRIMINAL APPEAL NO.841 OF 2004
The State of Maharashtra.
Through Police Station,
New Mondha, Parbhani.
...Appellant/ State
- VERSUS -
Ujwala w/o Shrikant Zamare,
Age : 50 years, Occu. : Medical Practitioner,
R/o Parbhani, Dist. Parbhani.
...Respondent/ accused
...
Shri S.S. Chapalgaonkar, Advocate h/f Shri S.P. Chapalgaonkar,
Advocate for the accused.
Shri G.O. Wattamwar, APP for the State/ prosecution.
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Ms. Madhaveshwari S. Mhase, Advocate for the original
complainant/ informant.
...
CORAM : SUSHIL M. GHODESWAR, J.
Reserved on : 01 October 2025
Pronounced on : 14 October 2025
JUDGMENT :
-
1. Since both these appeals arise out of the same
impugned judgment, therefore, they are being decided by this
common judgment. In this judgment, for the sake of
convenience, the parties are referred to in their original capacity
i.e. Ujwala Shrikant Zamare as accused, the State of Maharashtra
as prosecution State and Bhimrao Narhari Narwade as
complainant or informant.
2. The impugned judgment and order in these appeals
is dated 14.10.2004 passed by learned 2nd Ad-hoc Additional
Sessions Judge, Parbhani, in Sessions Trial No.23/1998, thereby,
acquitting the accused of offence punishable under Section 314
of the Indian Penal Code, 1860 (for short, 'the IPC') and
convicting her for offence punishable under Section 304-A of the
IPC and sentencing her to suffer simple imprisonment till rising
of the Court and to pay fine of Rs.2000/-, in default to suffer
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rigorous imprisonment for three months and shall also pay
compensation under Section 357 of Code of Criminal Procedure
(for short, 'the CrPC') of Rs.1,00,000/- to the legal heirs of
deceased Sunanda. On failure to deposit compensation, same
shall be recovered under the provisions of Maharashtra Land
Revenue Code by way of attachment or any other process
according to law. Amount of compensation shall be paid to the
heirs of victim within the period of three months from the date of
said judgment.
3. Brief facts leading to filing of these appeals can be
summarized as under:-
As per the prosecution, the accused (Ujwala
Shrikant Zamare) is a private medical practitioner having
hospital under the name and style as "Gurukrupa Maternity and
Nursing Home' at Shivajinagar, Parbhani. She holds M.B.B.S.,
D.G.O.. Her husband is also serving as doctor and holds M.D. in
Anesthesiology in the same hospital. On 29.10.1996, the
deceased Sunanda w/o Bhimrao Narwade went to hospital of the
accused in order to check pregnancy along with a neighbor
woman. Accused examined her and diagnosed that she was
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pregnant of eight weeks. As the deceased Sunanda desired to
terminate pregnancy, she expressed her willingness for Medical
Termination of Pregnancy (for short, 'MTP'). Therefore, the
accused after obtaining consent of the deceased and her husband
(complainant), carried out MTP. As per the prosecution, due to
negligence on the part of accused while conducting MTP
operation, the deceased Sunanda sustained injuries to her internal
organs i.e. uterus and intestine. The accused herself disclosed this
fact to the informant Bhimrao Narwade and told that family
planning operation is required to be performed on Sunanda else
she would not survive. It is the case of prosecution that, the
accused then obtained consent of the deceased Sunanda and
Bhimrao Narwade and also carried out family planning operation
in her hospital on 29.10.1996 at 6:00 PM. Inspite of operation,
the condition of Sunanda did not improve and she was having
pains in stomach and her condition got deteriorated. Therefore,
on 04.11.1996 at about 12:00 PM, the accused asked the
complainant Bhimrao Narwade that Sunanda be shifted to the
Government Hospital for proper treatment, upon which Sunanda
was taken to Government Hospital at Parbhani. During treatment
at Government Hospital, on 05.11.1996 at 12.30 p.m. Sunanda
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died. Therefore, the complainant Bhimrao Narwade lodged
Crime No. 245/1996 under sections 304-A of Indian Penal Code
with Police Station New Mondha, Parbhani, alleging therein that
the accused did not exercise due care to Sunanda while
performing operation in her hospital because of which internal
organs of Sunanda were damaged and as result, she passed away.
4. After registration of the crime, investigation was set
in motion. The postmortem examination revealed that death was
due to endotoxic shock resulting from injury to the intestine.
Upon completion of investigation, the charge-sheet was filed. On
the application being filed by the complainant Bhimrao Narwade,
Section 314 of the IPC was added. Thereafter, the case was
committed for trial to the Sessions Court, Parbhani. The charge
was framed and read over to the accused, to which, the accused
pleaded not guilty and claimed to be tried. The prosecution led
oral as well as documentary evidence consisting of five
witnesses, out of them three are doctors. After hearing both sides
and considering evidence on record, the learned 2 nd Ad-hoc
Additional Sessions Judge, Parbhani, passed the impugned
judgment and order dated 14.10.2004. Hence, both these appeals,
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one by the accused against conviction and one by the State/
Prosecution for enhancement of sentence.
5. According to learned advocate Shri Chapalgaonkar
for the accused, she is now 71 years of age and is registered
medical practitioner. She was duly qualified and competent to
perform gynecological procedures. On 29.10.1996, the deceased
Sunanda had come to hospital as she wanted to terminate her
pregnancy as she was already having three kids and she was
middle age woman. The accused is protected by Sections 3 and 4
of the Medical Termination of Pregnancy Act as these provisions
do not prescribe any previous examination before performing
MTP. However, at the time of performing MTP, the accused
noticed certain perforations in wall of uterus. As such, she
immediately stopped said operation and called the senior-most
surgeon Dr.Wattamwar to examine the patient Sunanda. The
accused along with Dr.Wattamwar decided to operate Sunanda
by performing exploratory laparotomy so that perforations
caused can be treated. Accordingly, the said operation was
performed and thereafter, the deceased Sunanda was in her
hospital till 04.11.1996. However, the condition of Sunanda got
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deteriorated, therefore, her husband was advised to take her to
Civil Hospital for further treatment. According to learned
advocate for the accused, the accused had treated Sunanda as per
medical ethics and as such, there is no negligence on her part,
due to which her death is alleged to have been caused. The
exploratory laparotomy surgery was performed by senior-most
Dr. Wattamwar and the accused. Since Dr. Wattamwar expired,
he could not be examined. Therefore, the accused alone cannot
be held guilty of alleged negligence. Learned advocate, therefore,
strongly contended for giving benefit of doubt to the accused and
prayed for quashing the judgment and order of conviction. In
support of above submissions, learned advocate Shri
Chapalgaonkar has relied upon the judgments in Jacob Mathew
vs. State of Punjab and another reported in (2005) 6 SCC 1, Dr.
Suresh Gupta vs. Government of NCT of Delhi and another,
reported in (2004) 6 SCC 422, Neeraj Sud and another vs.
Jaswinder Singh (minor) and another, reported in 2024 SCC
Online SC 3069 and State of Punjab vs. Gurmej Singh, reported
in (2002) 6 SCC 663.
6. Per contra, learned APP appearing for the State/
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prosecution and learned advocate Ms. Mhase appearing for the
complainant/ informant, have strongly opposed the prayer of the
accused. They have contended that it is the accused alone, who is
responsible for gross negligence while treating the deceased. The
accused had not taken previous precautionary examinations
before carrying out firstly MTP and thereafter, exploratory
laparotomy. If the accused had taken said care, life of Sunanda
could have been saved and at the most, Sunanda would have kept
baby. The manner in which the accused performed MTP and
applied force while performing MTP, it resulted in perforations
not only to uterus, but also to intestine. The accused did not use
proper equipment while conducting MTP and did not handle
ovum forceps during curating which led to perforations to uterus
and intestine.
7. According to learned advocates for the prosecution
and the complainant, considering serious condition of Sunanda
and the request of the accused, the complainant allowed the
accused to carry out exploratory laparotomy for repairing
perforations. Along with the said exploratory laparotomy,
tubectomy was also performed, however, the complainant did not
*9* apeal 746&841o04
give any consent for conducting tubectomy. Senior-most Dr.
Wattamwar was present at the time of exploratory laparotomy.
There was perforation to uterus. There was also broad ligament-
cyst of size 3x4 inches, which was removed. There was about
100 c.c. of intraperitoneal blood, which was also removed. The
right side tubectomy was done. The surgeon traced intestine to
find out intestinal perforation, but there was no perforation
apparently. It has come on record that the patient's condition was
stable post operative, however, on fifth day her condition was
deteriorated and she developed paralytic ileus. The patient was
shifted to Civil Hospital and there, a team of doctors consisting
of Surgeon, Gynecologist and Resident Medical Officer
(Clinical) examined the patient and suggested re-exploration of
abdomen. This was undertaken on 04.11.1996 and the doctors
noticed two perforations side by side. There was four liters of
faecal matter which was aspirated and the repair was done.
However, post operation, the patient's condition was
unsatisfactory and inspite of all emergency measures, she expired
on 05.11.1996 at about 12:35 pm. Postmortem was carried out
and it was opined that the probable cause of death is cardio
respiratory arrest due to endotoxic shock due to perforation
*10* apeal 746&841o04
peritonitis with septicemia with uterine perforation.
8. Learned advocates for the prosecution and the
complainant strongly submitted that it was the accused alone,
who is mainly responsible for deteriorating condition of the
deceased Sunanda. If the accused had taken proper care at the
time of MTP, life of the deceased could have been saved. The
manner in which the accused performed MTP and further
exploratory laparotomy, that caused injuries not only to uterus,
but also to intestine. Due to said injuries, Sunanda died.
Accordingly, they prayed for enhancing sentence and
compensation awarded to the accused.
9. After hearing the submissions of learned advocates,
I have gone through evidence on record minutely. It is evident
that on 29.10.1996, MTP was performed on deceased Sunanda
by the accused and during that procedure, perforations were
caused not only to uterus, but also to intestine. The accused tried
to overcome said perforations by carrying out exploratory
laparotomy with the help of surgeon Dr.Wattamwar. Accordingly,
they performed exploratory laparotomy for treating perforations,
however, even after said surgery, the condition of Sunanda
*11* apeal 746&841o04
deteriorated. She was, therefore, referred to Civil Hospital for
further treatment. Despite having been treated by topmost
available doctors at Civil Hospital, life of Sunanda could not be
saved and, therefore, she expired on 05.11.1996.
10. According to Shri Chapalgaonkar, perforations
caused to uterus and intestine could be attributed to Dr.
Wattamwar being senior-most surgeon and not the accused.
However, Ms. Mhase has pointed out from the record that at the
time of performing exploratory laparotomy, main operation was
carried out by the accused and Dr. Wattamwar was just present
along with her. Hence, the issue of shifting accusation towards
Dr. Wattamwar is improbable. After considering evidence of all
witnesses, it is evidently clear that it is the accused, who acted in
gross negligence while performing MTP and due to which,
injuries not only to uterus, but also to intestine have been caused,
which resulted in death of Sunanda. The medical evidence on
record would show that perforations were caused while
performing MTP. The witnesses, who are experts in their medical
field, have specifically stated as regards the said gross negligence
at the hands of the accused. Medical evidence on record and the
*12* apeal 746&841o04
statements of witness doctors corroborate with each other.
Standard procedures, which were required to be undertaken by
the accused, have not been followed while treating deceased
Sunanda. As such, it is clear that the accused is liable to be held
responsible for death of deceased Sunanda due to her negligence.
11. This Court also finds it appropriate to refer to the
medical evidence and the findings recorded by the learned
Sessions Court as well as the Quality Assurance Committee
constituted under the authority of the Deputy Director of Health
Services, Aurangabad. The testimonies of PW1 Dr. Ashok
Manikrao Janapurkar, PW 2 Dr. Mohan Mavalge and PW 3 Dr.
Ganesh Polawar, are strongly consistent with each other to
conclude that there was gross negligent at the behest of the
accused/ appellant while treating the patient. It is categorically
held that on reopening of the abdomen during the second
exploratory laparotomy at the Civil Hospital, there was clear
evidence of uterine perforation of about 1½ inches anteriorly,
which had been sutured, and of two perforations to the jejunum,
each measuring 1 x 1 cm, about three feet away from the
ligament. There was also presence of about four litres of faecal
*13* apeal 746&841o04
fluid in the peritoneal cavity, indicating advanced peritonitis.
These findings, coupled with the postmortem report at Exhibit-
61, conclusively establish that the perforations to the uterus and
intestine were sustained during the MTP procedure conducted by
the accused.
12. It is necessary to ascertain whether the negligence of
the accused/ appellant was gross or not. Dr. Polawar in his
evidence stated that at the time of second exploratory laparotomy
in civil hospital on 04.11.1996, four liters of fluid and faecal
matter was saturated in the peritoneum which ultimately resulted
in peritonitis. This goes to show that the condition of Sunanda
was deteriorated in the night of 03.11.1996. There was formation
of bacteria which ultimately resulted in formation of toxin in her
body due to which doctors were required to perform second
exploratory laparotomy. However, it is also come on record that
necessary investigation required prior to tubectomy operation
was not done by the accused/ appellant. The record revealed that
no precautionary measures were undertaken by the accused.
Even before carrying out exploratory laparotomy on 29.10.1996,
no stomach investigation was done to find out gravity of
*14* apeal 746&841o04
perforation. Non performance of such previous examinations by
the accused/ appellant before undergoing MTP and thereafter,
exploratory laparotomy would amount to gross negligence.
13. Further, the Quality Assurance Committee in its
meeting dated 15.02.1997, after detailed deliberation, observed
that the MTP procedure had been carried out by the accused
without undertaking essential pre-operative investigations and
that the tubectomy procedure was also performed without the
consent of the patient or her relatives. The Committee found that
the probable cause of death was "cardio-respiratory arrest due to
endotoxic shock resulting from perforation peritonitis with
septicemia and uterine perforation." The Committee also
emphasized the lack of due care in pre-operative and post-
operative management and recommended that in future,
confirmation of pregnancy, minimal investigations, and proper
postoperative observation be mandatorily followed. The findings
of the Quality Assurance Committee, being a specialized medical
body, lend independent corroboration to the prosecution case and
the expert evidence on record that the death of Sunanda was
directly attributable to negligent acts and omissions of the
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accused while conducting the MTP procedure and subsequent
treatment.
14. However, on the point of sentence, Shri
Chapalgaonkar submitted that the accused is 71 years of age and
as such, she is not in active practice. She has already undergone
sentence awarded by learned Sessions Judge. She has also agreed
to pay compensation to legal heirs of deceased Sunanda. He,
therefore, prayed that the appeal filed by the accused be disposed
of in view of sentence already undergone by her.
15. The judgments relied upon by learned advocate for
the accused in Jacob Mathew (supra), Dr. Suresh Gupta (supra)
and Neeraj Sud (supra), are clearly distinguishable on facts. In
these judgments, the Hon'ble Supreme Court dealt with cases
where death occurred despite due professional care, and where an
element of gross negligence was not established. However, in the
present case, evidence of the medical experts clearly
demonstrates that the accused failed to adhere to the standard
procedure required for conducting MTP and thereby caused
perforations to vital internal organs of the patient. The degree of
deviation from accepted medical practice is so glaring that it
*16* apeal 746&841o04
exceeds the domain of a mere error and falls squarely within the
ambit of gross negligence contemplated under Section 304-A
IPC. In Gurmej Singh (supra), the facts are different wherein, the
question of due professional care or gross negligence in a
medical context does not arise. Hence, the judgments relied upon
by Shri Chapalgaonkar do not come to the aid of the accused.
16. In view of the evidence discussed hereinabove, this
Court is satisfied that the prosecution has proved that the accused
failed to exercise reasonable care expected of a qualified medical
practitioner while performing the MTP procedure. Injuries
caused to the uterus and intestine of the deceased were direct
consequences of such negligent conduct. The death of Sunanda is
the result of rash and grossly negligent treatment. Therefore, the
conviction of the accused under Section 304-A of the IPC is
justified and does not warrant interference. However, considering
the age of the accused and considering the agony suffered by the
family of the deceased and the degree of negligence, the fine
awarded deserves to be enhanced and paid to legal heirs of the
deceased.
17. In view of the discussion hereinabove, Criminal
*17* apeal 746&841o04
Appeal No.746 of 2004 filed by the accused fails and is hereby
dismissed. Criminal Appeal No.841 of 2004 filed by the
State/Prosecution is partly allowed. The impugned judgment and
order dated 14.10.2004 passed by the learned 2nd Ad-hoc
Additional Sessions Judge, Parbhani, is modified to the
following extent:
(a) The conviction of the accused under Section 304-A
of the Indian Penal Code is maintained. However, in place of
compensation under Section 357 of the Code of Criminal
Procedure, the accused shall pay a fine of ₹1,02,000/- (Rupees
One Lakh and Two Thousand only), out of which ₹2,000/- shall
be paid to the State, and ₹1,00,000/- shall be paid to the legal
heirs of deceased Sunanda.
(b) The fine amount shall be deposited before the Trial
Court within a period of one month from today. In default of
payment of fine, the accused shall suffer rigorous imprisonment
for three months.
(c) On deposit of fine as above, legal heirs of deceased
Sunanda are at liberty to withdraw the same.
kps (SUSHIL M. GHODESWAR, J.)
