Dr Kafeel Ahmad Khan of Gorakhpur’s Baba Raghubar Das (BRD) Medical College and Hospital has been lodged in the prison for the past eight months. He is accused of being responsible for the death of over 30 children on the intervening night of August 10 and 11, 2017. This incident, which horrified the country and made global news, was apparently caused because the state-run hospital ran out of oxygen on the fateful night asphyxiating the children – mostly infants – being treated in the encephalitis ward, within a span of 48 hours. The shortage of oxygen occurred after a Lucknow-based private company – Pushpa Sales – cut off supply following repeated reminders to the state-run hospital that its dues of approximately Rs 65 lakhs needed to be paid.

The horrendous incident has been enveloped in a fog of claims and counter claims. It is widely held that the Yogi Adityanath-led Bharatiya Janata Party (BJP) government in Uttar Pradesh is making the doctor a scapegoat to hide its own “infrastructural lapses and failure”. Meanwhile, a chargesheet filed against Dr.Kafeel accuses him of attempt to commit culpable homicide.

Newsclick has reviewed all the relevant documents including the chargesheet filed against Dr. Kafeel by the state prosecution, FIR and other police documents, documents relating to his appointment and service, his legal petitions, etc. to investigate whether the charges against him are valid. What emerges is shocking disregard for truth and a transparent design to implicate him without any reasonable ground. Here is a summary:

1. What were the official responsibilities of Dr. Kafeel at BRD College and Hospital?

Being a pediatrician, he was serving as an assistant professor at the BRD. He was not head of its Pediatric Department. Dr Mahima Mittal heads the department and Dr Satish Kumar, who is also an accused in the case, was in-charge of infrastructural maintenance of the department.

Dr.Kafeel was not even in-charge of the 100-bed acute encephalitis syndrome (AES) ward. Dr Bhupendra Sharma and Dr Rachna Bhatnagar were the in-charges of the 100-bed AES ward and Neonatal Intensive Care Unit (NICU) respectively where deaths of children took place. The exchange of letters between Dr Bhupendra Sharma and Dr Mahima Mittal available with the chargesheet filed by the police in the case confirms that the former was the nodal officer of the AES ward.

He was appointed under National Health Mission (NHM) – which works in coordination with the state government in the fight against encephalitis – as a contractual staff posted at BRD Medical College from May 24, 2013 to August 8, 2016. During this period, he was nodal officer of the 100-bed AES ward.

He resigned on August 8, 2016 to take charge as an assistant professor and the spokesperson of the BRD Medical College after clearing the UP Public Service Commission exam. After his service was regularised and he entered into academics, he was also appointed on December 29, 2016 as the Nodal Officer of the NHM, the post he held till August 13, 2017. The UP government removed him on August 13 at Chief Minister Yogi Adityanath’s behest after the children’s deaths.

As Nodal Officer of the NHM at BRD Medical College, Dr Kafeel was responsible for maintaining attendance, payments and supervising the work of the staff appointed under the mission. He was also supposed to take directions from his superiors and getting them implemented apart from discharging academic activities as an assistant professor and medical treatment of the children admitted in the ward.

2. Was Dr.Kafeel responsible for maintaining oxygen supply?

From the records it is clear that Dr.Kafeel was in no way responsible for arranging or monitoring oxygen supply.

The prosecution has said that the “accused persons knew that there was a possible threat to the lives of the children if the oxygen supply is cut off. They willingly did not make payment to Pushpa Sales that prompted the official supplier of the liquid oxygen to discontinue its services, which resulted in the disaster”.

Records suggest that Dr Kafeel had no role in procurement of oxygen, monitoring its stock and making payment to the supplier. It is the responsibility of the maintenance department, which was headed by Dr Satish Kumar – who also headed the department of anesthesia – to monitor the oxygen supply. The evidence number 38, 39, 40 and 47 of the chargesheet also confirms the same.

Pushpa Sales wrote 10 letters and 14 reminders for the payment of dues. All letters were addressed to UP’s Director General Medical Education, Principal of BRD Medical College and the district administration. None of the letters were addressed to Dr Kafeel.

3. Was he absent when the tragic incident occurred?

The chargesheet alleges that Dr Kafeel was absent that fateful night without any prior intimation. However, the attendance sheet accessed by Newsclick shows that the doctor was on leave, which was granted by the HOD.

Despite being on authorized leave, Dr Kafeel apparently got a message regarding the crisis and he informed his superiors such as Pediartics Department HOD Dr Mahima Mittal, Dr Satish Kumar – who was the in-charge of the oxygen supply – and Incharge Principal Dr Ram Kumar Jaiswal. Then he rushed to the Hospital.

“He (Dr Kafeel) reached the hospital and urged others as well to come over there,” said an official of the medical college who was close to the development.

The location of his cell phone, his call records, statements of people at present in the hospital and several other documents testifies the fact. All these documents, which were presented before the trial court along with bail application moved by the defense, have been accessed by Newsclick.

He contacted the the district magistrates of Gorakhpur and Sant Kabir Nagar who spoke to the owners of the suppliers and ensure the availability of the oxygen cylinders. The DIG Sashastra Seema Bal helped transport the cylinders.

Fifty cylinders were brought in on the same fateful night IGL and they were used as well. By August 11 morning, 50 more cylinders had reached to the hospital from Faizabad. It all happened because of the initiatives taken by Dr Khan.

“It was Dr Kafeel who went extra miles and made the arrangements with the help of the district magistrates of Gorakhpur and Sant Kabir Nagar and deputy inspector general of the Sashastra Seema Bal (SSB),” an official of the medical college told Newsclick requesting anonymity.

The SSB – the central police force that protects India’s borders with Nepal, Bhutan and Bangladesh – had gone on record and said Dr Kafeel’s efforts and SSB’s assistance helped in fighting the crisis.

“It was an unprecedented crisis situation at the BRD Medical College on August 10. Dr Kafeel Khan came to the DIG, SSB and requested for a truck so that oxygen cylinders could be collected from various locations and be taken to the medical college,” a News18 report had earlier quoted SSB’s PRO OP Sahu as saying.

4. Why has first probe panel’s report been ignored?

The District Magistrate set up a panel of high ranking officials immediately after the incident. It comprised: City Magistrate Vivek Kumar Srivastava, Chief Medical Officer Dr Ravindra Kumar, Additional District Magistrate (City) Rajneesh Chandra, Additional Commissioner (Gorakhpur division) Sanjay Kumar Singh and Additional Director (Health and Family Welfare) Dr Pushkar Anand. This panel gave a report on 13 August to the DM Rajeev Rautela who passed it on to the hedical education minister Ashutosh Tandon Gopalji. The report indicted the then BRD Principal Rajeev Mishra, Chief Anaesthetist Dr Satish Kumar and Chief Pharmacist Gajanand Jaiswal for the oxygen crisis apart from holding Pushpa Sales responsible for disrupting oxygen supply over payment issues.

The probe committee had found that the Pediatrics Department requires around 250 oxygen cylinders every 24 hours for proper functioning. When low pressure of oxygen was reported, the investigators had found, there were 52 oxygen cylinders in the stock. The panel had said – based on the documents provided by the chief pharmacist and the chief medical superintendent of the BRD Medical College and Hospital, 100, 120 and six cylinders of oxygen were procured at around 1:30 am on August 10-11 night from two different suppliers and one hospital - Imperial Gas, Modi Gas and Anand Lok Hospital – respectively. These arrangements were made by Dr.Kafeel.

“Dr Mishra and Dr Satish left headquarters without any information, thereby failed to address the emergency situation,” said the FIR.

5. How did oxygen supply run out?

IMA Secretary Dr R P Shukla said the situation of lack of oxygen arose due to administrative slack, absence of accountability and corruption running from officials in Gorakhpur to Lucknow. Although the state govt. had all the amenities to prevent the situation from happening, but it didn’t do so. On the contrary they arrested the doctor who with limited amenities tried to prevent the situation, he said.

Interestingly, it was reported that a high level committee headed by the Chief Secretary of UP govt. had found that lack of oxygen was not the cause of death of the children at BRD College. This report has not been released publicly. But, the govt. has slapped serious cases against doctors of the hospital on this ground.

Dr Shukla said that doctors were not even allowed on bail and neither was any thorough investigation done in the case after the incident. He demanded a high-level probe in the matter.

Chargesheet Relies on Confused Facts

Ignoring the above mentioned facts, the police charged the doctor under Sections 120B (criminal conspiracy), 308 (attempt to culpable homicide) and 409 (criminal breach of trust) of the Indian Penal Code (IPC). Charges of corruption and private practice against Dr.Kafeel have been dropped by the investigators.

To slap Section 308 of the IPC, it is necessary that a person does any act with an intention or knowledge that his or her act would cause death of another person/persons. But in this case, there is no mention of the name of the person in the entire FIR and chargesheet against whom the crime punishable under Section 308 of the IPC has been committed.

Bail plea not even being heard

Of the nine accused in the case, the Supreme Court on April 9 granted bail to the oxygen supplier who was booked for criminal conspiracy and criminal breach of trust under sections of the IPC.

After rejection from a court in Gorakhpur, Dr Kafeel’s bail application has not been heard for seven months, with the Allahabad High Court continuously postponing it as either the government lawyer has not turned up, or the reply by the government needs more details, etc.

In what local lawyers admit is totally unprecedented the high court at one point showed two dates for the hearing as “pending.” At the moment a new date for the hearing has still not been given with Khans lawyers having written to the judge for a date, reports The Citizen.

Interestingly, the high court in what UP lawyers describe as “unprecedented” has given two ‘next’ dates for the hearing and shown both of them as ‘pending’.