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PETITIONER: JUGGANKHAN

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT: 10/08/1964

BENCH: SIKRI, S.M. BENCH: SIKRI, S.M. SUBBARAO, K.

CITATION:  1965 AIR  831            1965 SCR  (1)  14  CITATOR INFO :  D          1968 SC 829  (13)

ACT: Criminal    Law-Poisonous   medicine-Prescription    without studying  possible effect-If rash and  negligent  act-Indian Penal Code, 1860 (45 of 1860) s. 304A.

HEADNOTE: Lured  by a pamphlet advertising that, among  other  things, the    appellant,   a   registered   Homoeopathic    medical practitioner, treated Naru (Guinea Worm), one D went to  the clinic  of  the  appellant.  The appellant  examined  D  and administered  24 drops of stramonium and a leaf of  dhatura. After  taking  the medicine D started feeling  restless  and ill, various antidotes were given but she was not  relieved. She vomited twice but the vomits were not preserved and sent for  examination.  Ultimately in the evening she died.   The autopsy  surgeon reported that the cause of the death  could be ascertained only after the result of the chemical  analy- sis  was received and he sent to the chemical  examiner  the stomach  with its contents and pieces of liver,  spleen  and kidney.  The Chemical Examiner reported that no poison could be  detected  in  any  of  these  items.   The   appellant’s contention  that it has not been proved that death  resulted from  dhatura poisoning was negatived by both courts  below, and  the High Court confirmed his conviction under  s.  302, Indian Penal Code.  On appeal by special leave HELD  : (i) On the facts the conclusion of the courts  below that  death  was the result of Dhatura poison could  not  be said to be erroneous. [16D] (ii) The  appellant was guilty under s. 304A,  Indian  Penal Code.   On  the facts, s. 299, Indian Penal  Code,  did  not apply  and  the appellant must be acquitted  of  the  charge under s. 302, Indian Penal Code. [19C] 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 possible effect. [18H] John   Oni  Akerele  v.  The  King  A.I.R.  1943  P.C.   72, distinguished

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JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 171  of 1962. Appeal  by special leave from the judgment and  order  dated May  10, 1962 of the Madhya Pradesh High Court Indore Bench at Indore in Criminal Appeal No. 344 of 1961. S.   Mohan Kumaramangalam, M. K. Ramamurthi, R. K. Garg,  D. P. Singh and S. C. Agarwal, for the appellant. I. N. Shroff, for the respondent. The Judgment of the Court was delivered by Sikri J. This is an appeal by special leave directed against the judgment of the High Court of Madhya Pradesh con- 15 firming  the conviction and sentence of the appellant  under s. 302, I.P.C. The  case  of  the prosecution, in  brief,  which  has  been accepted  both by the Sessions Judge and the High Court,  is as  follows.   The appellant is  a  registered  Homoeopathic medical practitioner tinder Madhya Pradesh Homoeopathic  and Bio-chemic  Practitioners  Act  (Madhya Pradesh  Act  26  of 1951). In  about  May 1960, he started residing and  practising  at Akodiya Mandi.  He issued a pamphlet advertising that, among other things, he treated Naru (guinea worm).  Lured by this, Smt.   Deobi,  aged about 20 years, who had  been  suffering from  guinea  worm for six weeks, accompanied by  her  uncle Chisaji (P.W. 3), mother Daryaobai _(P.W. 4) and aunt  Gulab Bai (P. W. 6) went to the clinic of the appellant on May 30, 1961, at about 8 a.m. She was examined by the appellant  and administered  24 drops of mother tincture stramonium  and  a leaf  of  dhatura.  After taking this medicine  she  started feeling restless and ill; various antidote,-, were given but she was not relieved.  She vomited twice but the vomits were not  preserved  and  sent for examination  to  the  chemical examiner.  Ultimately at about 5 p.m. she died. Dr. Patodia (P.W. 7) performed the autopsy on May 31,  1961, and  reported that the cause of death could  be  ascertained only after the result of chemical analysis is received.   He sent to the chemical examiner the stomach with its  contents and  pieces  of  liver, spleen  and  kidney.   The  chemical examiner, however, reported that no poison could be detected in  any  of  these items.  This is  seized  by  the  learned counsel  for the appellant and he has urged that it has  not been proved that death resulted from Dhatura poisoning.  But both  the courts below have found against him.   He  further urges that what was administered was not  fatal dose and  he has  seriously  challenged  the  calculations  made  by  the learned Sessions Judge of the contents of poison in the leaf alleged  to  have been given to the deceased.  He  has  also challenged the concurrent findings of the courts below  that a dhatura leaf and 24 drops of mother tincture of stramonium was  administered to the deceased. His final  contention  is that on the facts found it was not a case of murder under s. 302, I.P.C., but of an offence under s. 304A,I.P.C. We  have looked into the evidence bur we are unable  to  say that  the  concurrent finding of the courts  below  that  24 drops of stramonium and a leaf of dhatura were  administered is mani- 16 festly wrong.  They have relied on the evidence of  Chisaji, deceased’s uncle, P14, a register of patients maintained  by the   appellant,  P10,  the  prescription  written  by   the appellant,  and the evidence of Shyam Swaroop  Mishra,  P.W.

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14,  who  recognized the handwriting of the  appellant.   We think they were right in relying on the above evidence. We are also of the opinion that the courts below were  right in  concluding  that death resulted from poisoning.   It  is true  that Dr. Patodia could not say what poison caused  her death.   But  he could say that death was due  to  something that  was  an irritant, and it could be due  to  dhatura  or belladonna or any other poison.  The deceased, according  to Chisaji, P.W. 3, was a healthy woman, and had not taken  any other  medicine before arriving at the clinic.  She  was  at the clinic from 9 a.m. till she died.  The only medicine she took, apart from antidotes, was what was administered, i.e., 24  drops  of stramonium and a dhatura  leaf.   She  started feeling restless and ill soon after taking these things.  On these  facts the conclusion of the courts below  that  death was  the  result  of dhatura poison cannot  be  said  to  be erroneous. The  only question that remains is about the nature  of  the offence committed by the appellant.  Should he be  convicted under  S.  302  or  s. 304A,  I.P.C?  In  our  opinion,  the appellant is liable to be convicted under S. 304A and not S. 302, I.P.C. Dr.  Choudhary, P.W. 17, a registered medical  practitioner, in the course of his evidence, stated:               "In  the  opinion of Dr. Modi, the  writer  of               Medical Jurisprudence, a dose of. 20 to 20-1/2               grains  of dhatura is fatal and  according  to               Dr.  Taylor about 16 grains of it is  a  fatal               dose.   Therefore, I can say that if  a  fresh               leaf  of  dhatura  of 6 inches  length  and  4               inches   breadth  along  with  24   drops   of               stranionium  mother tincture  of  Homoeopathic               preparation  is given to any patient then  the               joint effect of both may be fatal and if it is               kept in mind that the ’patient is allergic and               idiosyncratic for stramonium then such a  dose               must be fatal." This is relied on by the learned Sessions Judge to determine what  would  be the fatal dose.  We have however  looked  up Modi’s  Medical Jurisprudence and Toxicology (14th  Edition) and   Taylor’s   Principles   and   Practice   of    Medical Jurisprudence (Ilth Edition) but they do not quite say  what Dr. Choudhary had assumed.  Modi writes at p. 713 thus 17               "Fatal  Dose-Uncertain.   Four  datura  fruits               pounded and mixed with flour were given to six               men, four of whom died.  A ripe fruit  weighs,               on  an average, about 2 drachms, and  contains               the  seeds  which weigh about  1-1/2  drachms.               One hundred dried datura seeds weigh 20 to 20-               1/2  grains.   A  decoction of  125  seeds  of               datura  stramonium  has  proved  fatal  to   a               woman."               According to Taylor (p. 55 1, Vol. 11)               "Toxicity   and   Fatal  Dose.    The   active               principle, a mixture of hyoscine, atropine and               hyoscyamine,  is extremely toxic, and  as  the               plant contains approxi mately 1 to 1 per  cent               of alkaloids, it must be considered  extremely               dangerous.   The seeds are  highly  poisonous,               inasmuch  as they contain a larger  proportion               of  alkaloids than other parts of  the  plant.               Death may take place although the whole of the               seeds are ejected.               A child of 2 swallowed about 100 see& of stra-

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             monium weighing 16 grains.  The usual symptoms               were manifested in an hour, and the child died               in  24  hours although twenty seeds  had  been               ejected  by  vomiting and eighty  by  purging.               Sufficient  alkaloid to destroy life had  been               absorbed  from  the entire seeds  and  carried               into the blood.               In a case which became the subject of a  trial               at  Osnabruck,  a woman  administered  to  her               mother a decoction of the bruised seeds of the               thorn-apple,  of which it was  supposed  there               were   about  125.   She  very   soon   became               delirious,  threw  her arms  about  and  spoke               incoherently; she died in 7 hours." Dr.  Patodia (P.W. 7) could not definitely say what dose  of tincture  stramonium should be sufficiently fatal  to  life. But  he  further  opined  that half  an  ounce  of  tincture stramonium,  which  is in sufficient excess  of  the  normal medicinal  dose  (which he put at 10 to 30  drops)  will  be sufficient to cause death. On this material we cannot say that it has been  established that  what the appellant prescribed was necessarily a  fatal dose.   Further, the finding of the learned  Sessions  Judge that the leaf weighed 40 grains and the poison content would be  15 grains does not proceed on any sound basis.   Chisaji described the leaf as a big one but it was green and  fresh. Laxminarayan 18 Vaidya, P.W. 13, gave the dimensions of the biggest leaf  as having  a  length of 7 inches and breadth  of  3-1/2  inches grown  on  the  land  having  application  of  manure.   Dr. Choudhary, P.W. 17, said that "on the basis of hypothesis if a  fresh leaf of dhatura is 6 inches in length and 4  inches in  breadth and is 40 grains in weight, it would contain  27 grains  moisture  and 13 grains of  solid  stramoniun,  i.e. poison." We think that this hypothetical evidence should not have  been  relied upon to determine the  content  of  solid stramonium in the leaf alleged to have been administered  to the deceased.  It follows from this that poisonous  contents of the leaf have not been satisfactorily established and  if this  is  so, the prosecution has failed to prove  that  the dose given to the deceased was necessarily fatal.   Further, Dr. Choudhary stated that it had not come to his notice that in  any of the Homoeopathic systems of  medicine  stramonium mother  tincture or stramonium in potenised form or a  green leaf  of dhatura is not given for treatment of  guinea-worm. According  to  Dr.  R. K. Singh, P.W.  16,  mother  tincture stramonium can be given for removing foreign bodies,  though it  is  not  specifically mentioned  in  Materia  Medica  of Homeopathy  that  it_ can be used for treatment  of  guinea- worm.   But  it  will  be remembered  that  in  this  system treatment is by symptoms. On  these facts, it appears to us that S. 299, I.P.C.,  does not   apply.    It  cannot  be  held  that   the   appellant administered the stramonium drops and the dhatura leaf  with the knowledge that he was likely by such an act to cause the death  of  the  deceased.  Accordingly,  we  hold  that  the appellant must be acquitted of the charge under S. 302. 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

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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. The  learned  counsel  for the  appellant  has  invited  our attention to the case of 19 John  Oni  Akerele v. The King(1) a decision  of  the  Privy Council in an appeal from West Africa.  But this decision is wholly distinguishable.  The doctor in that case was a  duly qualified medical practitioner and had given an injection of Sobita,  which consists of sodium bismuth tartrate.  It  was alleged  that the doctor had given a dose stronger than  the proper  dose.   On the facts, their Lordships  came  to  the conclusion that criminal negligence had not been proved.  It is true, as observed by their Lordships, that care should be taken before imputing criminal negligence to a  professional man acting in the course of his, profession, but even taking this care we have no doubt that the appellant was guilty  of a  rash and negligent act.  Accordingly, we hold that he  is guilty under s. 304A, I.P.C. In  the  result, the appellant’s conviction  under  S.  302, I.P.C.,  is set aside and he is convicted under s. 304A  and sentenced to 2 years’ rigorous imprisonment. Conviction altered. (1) A.I.R. 1943 P.C. 72.