@JUDGMENTTAG-ORDER
Sanjay K. Agrawal, J.
1. Invoking revisional jurisdiction of this Court under Section 397/ 401 of the Code of Criminal Procedure, 1973, petitioner herein has filed this criminal revision against the impugned order dated 19-5-2011 by which learned Additional Sessions Judge, Balod, District Durg framed charge for the offence punishable under Section 304, IPC. The core facts required for judging the legality and correctness of the impugned order are as under:--
1.1 That the petitioner is a registered medical practitioner having passed Ayurved Ratna and practicing in alternative system of medicine administered injection to Lalita Bai aged about 30 years wife of Mahesh Kumar some time in the month of August, 2010. The said injection was administered in the Thai region, later on after 2-3 days Lalita Bai suffered pain in that place followed by swelling. The husband of Lalita Bai contacted petitioner and thereafter petitioner found formation of pus in that place, for which she was subjected to cut by the petitioner herein which resulted in septicemia and thereafter the petitioner got Lalita Bai admitted in Government Shahid Hospital, Dallirajhara on 27-8-2010 and after long treatment of one month she died on 29-9-2010.
1.2 Upon memo of Government Shahid Hospital, Dallirajhara, an offence under Section 304, IPC was registered against the petitioner and body of Smt. Lalita Bai was subjected to the post-mortem. In the postmortem, it is found that cause of death is septicemic shock due to extensive ulcer.
1.3 Upon investigation charge-sheet for the offence punishable under Section 304, IPC was filed before the jurisdictional criminal Court.
1.4 The Court of Session on 19-5-2011 framed charge for the offence punishable under Section 304, IPC i.e. culpable homicide not amounting to murder against the petitioner, this criminal revision has been filed challenging the order framing charge.
2. Mr. Awadh Tripathi, learned counsel appearing for the petitioner would submit that the Trial Court has committed manifest legal error in framing charge under Section 304, IPC. Elaborating his submission, he would further submit merely on the basis of alleged administration of injection to the deceased Lalita Bai by the petitioner, it cannot be held that petitioner administered the injection with knowledge that his said act, would cause death, as there was no intention to kill the deceased and there is no sufficient material to frame charges under Section 304, IPC is available on record.
3. Opposing the said submissions, Mr. Prasun Bhaduri, learned counsel appearing for the State/respondent would submit that the petitioner not being a qualified doctor, administered the injection to the patient-Lalita Bai without studying its effect. The charge under Section 304, IPC has rightly been held to be made out by the Trial Court; therefore, revision deserves to be dismissed.
4. I have heard learned counsel appearing for the parties and have also perused the record of the Court below with utmost circumspection.
5. In order to consider the question raised, it would be proper to notice certain undisputed and admitted facts, which are thus:--
(i) that the petitioner is registered medical practitioner certified by Council for Alternative System of Medicines, having passed Ayurved Ratna;
(ii) that he administered injection some time in the month of August, 2010 to Lalita Bai to arrest her fever, which she was suffering;
(iii) that at the place of injection, she developed swelling followed by formation of pus and on complaint being made, the petitioner made a cut on that place, which resulting into septicemia, thereafter, the petitioner got her admitted in the Government Shahid Hospital, Dallirajhara on 27-8-2010;
(iv) that on 29-9-2010 Lalita Bai died in the hospital; and,
(v) according to the post-mortem report, she had ulcer in glutted region, which reads thus:--
"Ulcer--Present on (Rt) glutted region extending uploaded (Rt) lateral and post anlut of the beak up to the lower margin of the copula and medial aspect of the thing blackish margins as full Vidin to the dermis the base tirade by ulcer smells foul pus present ulcer is dreamed bondage".
(vi) that the cause of death was septicemic shock due to extensive ulcer.
6. In view of the aforesaid admitted facts, the question is whether there is sufficient ground against the petitioner for framing charge under Section 304, IPC that culpable homicide not amounting to murder, which is punishable under Section 304, IPC.
7. In order to attract Section 304, Part II of the IPC, it must be shown that the Act committed by the petitioner amounted to culpable homicide not amounting to murder. Culpable homicide is defined in Section 299 of the IPC as under:
299. Culpable homicide.--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.
Explanation 1.--A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.
Explanation 2.--Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented.
Explanation 3.--The causing of the death of child in the mother''s womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born.
In order to bring an act within the ambit of culpable homicide, it must be shown that a person has caused death by doing an act and he had done so:
(i) with the intention of causing death or,
(ii) with the intention of causing such bodily injury as is likely to cause death; or
(iii) with the knowledge that he is likely by such act to cause death.
8. In a decision in
12. The appellant was charged in the alternative under S. 304A. The learned counsel for the appellant urges that the ingredients of S. 304A have not been established inasmuch as it was not a rash or negligent act. We are unable to accept this contention. Stramonium and a dhatura leaf are poisonous. The appellant was registered as a Homoeopath, and in Homoeopathy a dhatura leaf is never administered as such. This much he admits himself. According to the evidence on the record, in no system of medicine, except perhaps in the Ayurvedic system, the dhatura leaf is given as cure for guinea worms. It seems that the appellant prescribed the medicine without thoroughly studying what would be the effect of giving 24 drops of stramonium and a leaf of dhatura. It is a rash and negligent act to prescribe poisonous medicines without studying their probable effect.......
9. In order to decide aforesaid controversy, it would be profitable to notice Section 304A, IPC, which states as under:--
"304A. Causing death by negligence.--Whoever causes the 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 two years, or with fine, or with both".
10. The following are the ingredients of Section 304A, IPC:--
"(i) That the accused caused the death of any person;
(ii) That such death was caused by the accused doing any rash act;
or
That such death was caused by the accused doing any negligent act; and
(iii) Such a death did not amount to culpable homicide".
11. Before proceeding further, I would consider the relative scope and distinction between S. 304A and S. 304, Part II of the Indian Penal Code.
12. It is well settled law that Section 304A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299, IPC or murder under Section 300, IPC. It is also well settled that Section 304A by its own definition totally excludes the ingredients of Section 299 or Section 300, IPC. Doing an act with the intent to kill a person or knowledge that doing of an act was likely to cause a person''s death are ingredients of the offence of culpable homicide.
13. In a decision in
10. Section 304-A by its own definition totally excludes the ingredients of Section 299 or Section 300, I.P.C. Doing an act with the intent to kill a person or knowledge that doing of an act was likely to cause a person''s death are ingredients of the offence of culpable homicide. When intent or knowledge as described above in the direct motivating force of the act complained of, Section 304-A has to make room for the graver and more serious charge of culpable homicide. Does this happen in this case.
14. Thereafter, again in a decision in
8. Then the question would be whether an offence under Section 304-A, IPC is made out? The provisions of this section apply to cases where there is no intention to cause death and no knowledge that the act done in all probabilities will cause death. Therefore this provision is directed at offences outside the range of Sections 299 and 300, IPC and obviously contemplates those cases into which neither intention nor knowledge enters. The words "not amounting to culpable homicide" in the section are very significant and it must therefore be understood that intentionally or knowingly inflicted violence directly and willfully caused is excluded. The section applies only to such acts which are rash or negligent and are directly the cause of death of another person. In other words, a rash act is primarily on overhasty act as opposed to a deliberate act but done without due care and caution. Then the question whether the conduct of the accused amounted to culpable rashness or negligence depends on the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient and this depends on the circumstances in each case.
15. Thereafter, again in a decision in
18. Coming to the plea of the applicability of Section 304A it is to be noted that the said provision relates to death caused by negligence. Section 304 applies to cases where there is no intention to cause death and no knowledge that the act done in all probabilities will cause death. The provision relates to offences outside the range of Sections 299 and 300, IPC. It applies only to such acts which are rash and negligent and are directly the cause of death of another person. Rashness and negligence are essential elements under Section 304A. It carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 or murder in Section 300, IPC. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a persons death is culpable homicide. When the intent or knowledge is the direct motivating force of the act, Section 304A, IPC has to make room for the graver and more serious charge of culpable homicide.
16. Again, their Lordships of Supreme Court in a decision in
7. Section 304-A, IPC applies to cases where there is no intention to cause death and no knowledge that the act done, in all probabilities, will cause death. The provision is directed at offences outside the range of Sections 299 and 300, IPC. Section 304-A applies only to such acts which are rash and negligent and are directly the cause of death of another person. Negligence and rashness are essential elements under Section 304-A.
8. Section 304-A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 or murder under Section 300. If a person willfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will not be a case of mere rash and negligent driving and the act will amount to culpable homicide. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a person''s death is culpable homicide. When intent or knowledge is the direct motivating force of the act, Section 304-A has to make room for the graver and more serious charge of culpable homicide. The provision of this section is not limited to rash or negligent driving. Any rash or negligent act whereby death of any person is caused becomes punishable. Two elements either of which or both of which may be proved to establish the guilt of an accused are rashness/negligence, a person may cause death by rash or negligent act which may have nothing to do with driving at all. Negligence and rashness to be punishable in terms of Section 304-A must be attributable to a state of mind wherein the criminality arises because of no error in judgment but of a deliberation in the mind risking the crime as well as the life of the person who may lose his life as a result of the crime. Section 304-A discloses that criminality may be that apart from any mens rea, there may be no motive or intention still a person may venture or practice such rashness or negligence which may cause the death of other. The death so caused is not the determining factor.
17. Thus having ascertained the legal position and relative scope of the applicability of Sections 304A and 304, IPC as laid down by their Lordships'' of the Supreme Court in aforesaid cases, the question that falls for consideration is whether in the instant case, the facts as gathered from the charge-sheet, it can be held that there is sufficient material on record to frame charge against the petitioner for commission of offence under Section 304, IPC.
18. Reverting back to the facts of the present case, it appears that the petitioner, who is registered medical practitioner, on medical advise sought by Lalita Bai to treat for fever, which she was suffering, administered injection to her, later on, in place of injection, she developed pain followed by swelling and formation of pus, which was subjected to cut and when the position became worst, he admitted her to the Government Shahid Hospital, Dallirajhara, where she died on account of septicemic shock due to extensive ulcer. Therefore, by no stretch of imagination, it can be held that by his act of administering injection, he had any intention to cause death or he had knowledge that administration of said injection in all probability will result in her death.
19. Thus, in view of the aforesaid analysis and following decisions as laid down by their Lordships'' in above-noted cases, I am of the considered opinion that the learned Sessions Judge has committed manifest legal error in framing charge for commission of offence under Section 304, IPC. The order framing charge under Section 304, IPC is accordingly set-aside. The charge stands altered to Section 304A, IPC. It is directed that the learned Sessions Judge will send down the record of the criminal case to jurisdictional criminal Court for framing charges under Section 304A, IPC against the petitioner in accordance with law. It is made clear that Court has not expressed any opinion on merits of the case. The concerned Court try the case strictly in accordance with law without being influenced by any of the observation made hereinabove by this Court. As a consequence and fallout of the aforesaid discussion, the criminal revision is allowed in part to the extent indicated hereinabove.
