Judgement

KRISHNAN, J. : The appellant, aged about 55 years, and registered as a homoeopathic medical practitioner at the relevant time at the Akodia Mandi in the Dist. of Shajapur, has been convicted by the learned Sessions Judge Shajapur under Section 302, I. P. C., for the murder of Deobai, wife of Gopal Rajput, aged about 20 years, by administering to her a quantity of extract of stramonium (Dhatura), and also a full leaf of the same plant, knowing or having reason to know that the leaf as well as the extract are extremely poisonous, and in the manner and quantities administered, certain to cause death of the patient, and not indicated in any recognized system and certainly not in homoeopathy as the proper medicine for the disease that he was ostensibly treating, namely, "naru" or guineaworm.

2. In the lower Court as well as here, the questions were the following. On the facts whether he did five the patient either the fresh leaves or the extract of stramonium or both, and not merely what he calls the appropriate treatment ("yogya ilaj") whatever that might mean; and whether beyond reasonable doubt, the womans death was the result of dhatura poisoning. Thirdly, that even on the finding that he did administer dhatura leaf and extract, whether he would be not guilty, because this has been prescribed as an appropriate treatment by internal administration in some book on Ayurved produced by him in this Court, which is system recognized by Government. Finally, whether he is protected under section 88 of the Penal Code and further, as an alternative if he would be guilty only under Section 304-A of causing death by a rash and negligent act, and not of murder, that is, of doing an act which he had reason to know to be so intrinsically dangerous that death was a certain result in due course of nature. The ease brings out very important problems relating to the killings on account of callousness or sheer stupidity of Ignorant charlatans pretending to be doctors or physicians, treat their patients and administer deadly poisons and also, on the evidentiary value and effect of earlier acts, similar to the one in controversy.

3. The following is the common ground in this case. Akodia Mandi in Shajapur District is a big village with considerable market, a hospital with a medico-legal centre in charge of an allopathic doctor of a degree qualification. There is besides, a police chowki or beat house, the proper thana itself being at considerable distance. Apparently, a comparatively new arrival there, the appellant had widely advertised his special skill in curing various diseases, including naru or guinea-worm which seems to be somewhat common in that locality. On the morning of 30th May, 1961, a patient, namely, Deobai wife of Gopal Rajput - a girl of about 20 years - was brought there by her uncle Ghisaji (P. W. 3) accompanied for assistance by two women relations - Daryaobai (P. W. 4) and Gulabbai (P. W. 5). They had certainly been attracted by the leaflets circulated by the appellant. She had some blisters out of which guinea-worms were emerging. They put her under the appellants treatment which began at about 9.0 A. M. Then she was in something like a come for a few hours. However, shortly before the very end, the appellant advised that there were still signs of life and if they took her away to their home, the fresh air on the road might revive her. The controversy on the facts is ill regard to what happened in this interval, what medicines were given, and what reaction the patient showed. There is clear evidence of a precisely similar happening on the 24th, the bearing, if any, of which, on the legal effect of the ascertained facts of this case, will have to be separately examined.

4. According to the girls three relations, in particular Ghisaji, who was the head of the group and who was following the treatment of the doctor more closely and more calmly than the two women, the doctor gave some drops to begin with; the girl became unconscious and began to vomit and showed signs of sinking. The doctor then went out for a short while and returned with a leaf in his hand, which Ghisaji - a villager of that locality - recognised as dhatura, a well known and extremely poisonous plant that grows widely here and there in the countrysides. Having brought it, the doctor cut it to pieces, ground it and made the entire leaf into a number of pills. He also added to it a yellowish solution from a bottle which the witness (being an ignorant villager) could not recognize. Later on the bottle labelled "stramonium" (dhatura extract) was recovered from the appellants dispensary and for reasons which will presently appear, the prosecution case is that in addition to the full leaf of dhatura, he gave a quantity of stramonium mother tincture (i. e. 1/10). The patient went on sinking, but the doctor tried to keep her giving at first a number of whitish tablets, may be of belladonna, followed by an injection. Meanwhile the relations gave her some milk and ghee, may be with or without the appellants knowledge or approval. Within the first few hours, the patients condition was most alarming but the end - at any rate to the knowledge of the relations - came between 4-0 and 5-0 P. M. It appears that towards the end, some friend in the bazaar went to the local Assistant Surgeon, asking him to go and see the patients but the latter, who is a witness, declined to go, after hearing the full story, because the girl was already in charge of another professional and it would have been highly improper for him to go there uninvited.

5. By the time the fact of the patients death get noised in the bazaar, the officer in charge of the beat-house, thought it proper to go and take charge of the corpse, arid also to bring the appellant to the beat-house and detain him for the time. By a curious accident, this police officer himself became very sick that night, and accordingly sent a message to the thana that somebody else should come and take charge. The officers of the than came and took charge, in the early hours of the next morning. The usual inquest was held and the corpse sent for post mortem examination. In addition, two loose sheet prescriptions torn from a counter-foil book were seized one relating to this patient, and another relating to out Hiralal, of whom something will be said at the appropriate place in course of the judgment. The latter was torn and the beat-house officer seems to have thought that it was done intentionally, to conceal certain-past happenings; this was a mere impression and is of no significance. The appellant was arrested towards the evening of the 31st and his dispensary was locked. Some four or five days later, the book maintained by the appellant in course of his medical practice as a registered homoeopathic practitioner, was also seized from the dispensary and exhibited as P/14 in this case;

6. The post-mortem examination showed certain signs which have been noted by the doctor, but the inference from these data was not recorded in the post mortem report itself, the doctor having reserved his opinion till after seeing the chemical analysers report on the contents of the viscera. The latter, however, got the viscera which had been taken out about 24 hours after the administration of the medicine; so he could not give any opinion of the contents. Now the doctor who held the autopsy, interpreted the data already recorded by him and gave his opinion in the Court that the death was the result of an irritant poison of the class to which stramonium belongs, in other words, containing what are called the atropine alkaloids, having very distinctive effects on the stomach and connected internal organs, and in particular the pupils of the eye. He was sure of the class of the poison; but not that it was necessarily dhatura, and not any other of that class.

7. The appellants patient register contains an entry regarding this patient -

"S. No. 1715. Date 30-5-1951.

Patient - Deobai. Age - 20 years.

Residence - Katlai. Disease - Threadworm

Medicine Prescribed - Stramonium(?) 24 drops, 1 leaf."

8. On these materials the appellant was charged under Section 302 I. P. C., with one under Section 304-A as alternative. His defence was that though the patient died, it was something unexpected and not intended or foreseeable, because he had given the "proper treatment", the details of which, however, he did not care to divulge. He denied having given either the extract of stramonium or the leaf, and further alleged that Ghisaji was giving false evidence, and the entry in his register relating to this patient had been made by somebody else. He also described the prescription mentioning this patients name and noting "stramonium 2" as a forgery. His defence is that the whole case is a fabrication at the instance of those who have been jealous of his professional success.

9. Apropos of the general picture, it is worth knowing that one more piece of evidence was sought to be adduced. The appellant, it is stated, told the officer and the panchas that he would take them to the place from where he had collected the dhatura leaf and accordingly did so, showing them some of the wild plants in the back of the masjid at that place. The learned Sessions judge, in our opinion correctly, refused to treat this as a discovery, because the dhatura plant grows all over the place and cannot in any manner, be said to have been discovered by the police as a direct consequence of a statement by the appellant.

10. Another piece of evidence relates to a happening one week earlier. As far as the facts of the case go, it is not relevant; but it is, in regard to the state of mind, and the reason to know something on the part of the accused. On the 24th of the same month i. e., 6 days before this happening, one Ramsingh P.W. 6 - a resident of another village in the neighbourhood, unconnected with and unknown to the Ghisaji family - had also seen some leaflets distributed by the appellant; so he brought his son Hiralal aged about 24 years for treatment for the same ailment i. e. naru. He came on the previous evening and the treatment started on the next morning. The results were exactly the same as happened to Deobai. A contradiction, however, has been pointed out in his cross-examination and it is urged that Ramsingh is not correct when he asserts that his son died at the dispensary of the appellant, and he only died an hour or two later while being taken away home in the cart near a village midway between Akodia and his home. Ramsinghs own explanation is that he had a youngster - a nephew - with him and not wishing to frighten him, gave out that Hira Lal was not quite dead when being removed; half way towards his village he said to the boy that Hiralal had died just then. Be that as it may, the interesting point is that the entry regarding Hiralal which is Serial No. 1707 is thus -

"Date - 24.5 Patient - Hiralal

Age - 24 Residence . . .

Disease - Threadworm.

Medicine - Stramonium (?) 24 d. 1 leaf

Remarks - Free".

The last word is almost comic because Ramsingh states that the agreed fee was Rs. 10/-, though the evidence has not brought out whether it was actually paid, or withheld in view of the results. In regard to this incident, the defence is that this entry is also a piece of forgery, in fact all the entries from 1707 to 1722 having been falsely made in the appellants book by somebody else with an ulterior purpose.

11-25. (After discussing the evidence on facts of the case, the judgment continues as under :) - In this connection, the compilation called Indian Material Medical by one A. K. Nadkarni and "forwarded" by Col. R. N. Chopra is non-committal. Under heading 796 to 799, dealing with dhatura of different but very closely allied species, the compiler sets out the different usage to which the drug is put "by ayurvedic, siddha and unani practitioners" without asserting anything about the safety or propriety of that course. He also gives the factual results of analysis under the heading "constituents". Under the heading "uses" quite a large number have been set out mostly by ayurvedic physicians without the compiler expressing any opinion about the appropriateness or otherwise; but it is very significant that guinea worm is not one of them. For the most part, the application is external which is of course far less dangerous than internal administration and also in the form of smoking material, containing about 15, grains (less than 1 gram) of the dried material, and smoked over some time, when only part of the active principle goes in. The result of this discussion is that the mention of such a method in the Marathi book already referred to cannot at all justify the appellants act.

26. We have already referred to the entry 1707, in the same terms, as the one 1715 regarding Deobai. Evidence has been led on the appellants treatment of Hiralal and its results only six days before the present incident. For some reason or other, the appellant is not on trial for the murder of Hiralal. Had this case been heard by the jury, the entry could only be introduced without referring to the results. The results could be referred to if there was a question as to the knowledge on the part of the appellant of the deadly effect of this poison. But the prosecution has been able to show that even a man of no education in the country side is aware of the extremely poisonous nature of dhatura. But since the defence is that there are in the record of medical experience cases in which this drug has been successfully administered for curing guinea-worm, it is open to the prosecution to show that the experiment carried out by the appellant himself in exactly similar circumstances had shown him that far from being a cure, this drug is a certain killer. The Hiralal-incident as described by Ramsingh and his nephew is no doubt true. It has not even been suggested that Ramsingh is either telling a falsehood or exaggerating. The patient was treated in the morning at about 9-0 or 10-0 and according to Ramsingh died before evening. On the suggestion put to him he died only an hour or two later when being carried away to his village in a condition in which all hope had gone. The difference is of no consequence; but Ramsinghs account is more reliable and his explanation, why he did not then and there shout that his son was quite dead, is satisfactory. Any way, Hiralal (aged 24 years) given 24 drops of the tincture stramonium and one leaf of dhatura, died within 8 or 10 hours. The present patient who was four years younger and apparently weaker, being a woman, died within 8 hours. The picture of the treatment and the progressing sinking is the same in both the cases. Now, even if the appellant had been ignorant of the effect of dhatura on the human system or the fatal consequences of administering it in these doses, he had altogether no excuse to continue to be ignorant or to be optimistic after the treatment of Hiralal. Actually, this is advanced as an argument by the defence against the factual probability of the appellant having given this patient the same medicine as he had given to Hiralal. Surely, he should not have tried this on another patient; but whether he did so is a question of fact. On that the evidence is quite conclusive.

27. There is therefore no doubt that the appellant caused the death of Deobai by giving her dhatura in two forms and in the quantities already set out. The question of law is, whether this comes under a general exception, or is only a rash and negligent act causing death covered by Section 304-A, or is one under Section 302 I. P. C. No reported case has considered this question in a straight manner and given a categorical answer. So, it is proper to classify the different circumstances in which treatment by doctors or by quacks leads to the death of the patient.

28. Firstly, we have the case, which fortunately is rare indeed, where the doctor is a qualified person, and administers a drug which after due research and experiment is accepted on all hands as the appropriate remedy. He also administers it in the prescribed quantity, and manner, that is to say, orally or by injection as the case may be, and with due precautions indicated in the science. Still, the patient dies on account of a surprising and unexpected personal idiosyncrasy. In. such a case unfortunate as the event may be, the doctor would not be liable for any criminal offence.

29. Secondly, is the case where the medicine is certainly the proper one, but a mistake has been committed in regard either to the quantity or the manner of administration, or in regard to the precautions. If the quantity does not vary very considerably from the prescribed quantity, then the position would be one rather of negligence than of knowledge that the mistake will certainly result in death. But if the quantity is very considerably in excess of the prescribed quantity, the position might be different. Similarly, if the variation in the manner of administration is only slight, that is to say, in this solution or that solution, then it might be ordinary negligence but if it is basically different in other words, if the doctor administers orally what is to be administered by an injection or vice versa, then the position would be much more serious than negligence. It is this class of cases that would present a certain amount of difficulty whether the mistake committed by the doctor is so serious or he has gone so far out of his way that he should be deemed to have knowledge of the certainty of death following his mistake. So, such a case would become either murder under section 302, or a rash or negligent act causing death under Section 304-A of the Penal Code; the decision would depend on all the circumstances of the case.

30. Of the third type the present case is typical. Here the medicine is one not at all indicated as a proper remedy for the allment in question, in the system practised by the doctor or as for that matter, in any system based on science and scientific experiment. Even if the quantity is no more than the safe dosage, and the manner is the same as indicated for the disease for which the drug is a proper remedy, still the fact that the doctor is using the drug for a disease for which it has not been prescribed, would make him liable for murder if death follows. This is particularly so where both by its nature and in the quantity administered the drug is lethal, that is to say, certain to cause death in due course of nature. These ingredients alone are sufficient to bring the act within the definition of murder; but where the doctor uses large quantities and applies the drug in more than one form, they become aggravating circumstances. Thus, this case which is typical of the third kind of killing by medicine or quackery, is undoubtedly one of murder coming under definition "fourthly" in Section 300 I. P. C.

31. In the case, Khushaldas v. State, AIR 1960 Madh Pra 50, the accused who was a hakim ostensibly practising the unani system, was treating a patient suffering from a bad cold. He gave him an injection of procain penicillin and the patient died. The courts convicted him under Section 304-A. On the facts, they held that the medicine was the proper one, but the manner of application was not safe or proper and accordingly treated it as a rash and negligent act. The Courts did not take any special note of the fact that the accused was a hakim practising a system which did not recognise the administration of medicine by injection. But there is no parallel between that case and the instant one. Here the medicine that was given was altogether improper and was by itself highly poisonous. Again, in regard to the quantities it was not brought out in Khushaldass case AIR 1960 Madh Pra 50 that the quantity was in any manner in excess of the one prescribed for that disease in the system which has recognised the use of penicillin. Thus, the present case stands on a different footing.

32. The learned Sessions Judge has in paragraph 62 of his judgment referred to Section 87 of the Penal Code as being cited on behalf of the accused; obviously, he means the next section 88, to the effect that nothing that is not intended to cause death is an offence by reason of the harm which it may cause or be known by the doer to be likely to be caused to a person in whose benefit it is done in good faith and who has given a consent to suffer that harm or to take the risk of that harm. Certainly, a patient who puts himself under the treatment of a medical practitioner qualified or otherwise gives an implied consent to suffer the harm and to take the risk. There is no doubt about it; but where the medical practitioner so called, is not qualified or begins to apply a medicine which no man in his senses would dare to apply, the consent is not a consent obtained in good faith. Good faith always implies due diligence and caution. In the case of a person who offers to treat others, this diligence and caution do not merely refer to the moment the act is done, but also to the learning and the experience the doer has to have acquired earlier. If a person sets out to be a doctor without knowing anything of the job, and tries to do the best he could under the circumstances, still he would be acting in bad faith, because he has set himself up as a doctor without the appropriate education, training and experience. Similarly, when a person administers quantities of a poison or a drug known to everybody and to him particularly after his experience as a deadly poison, pretending to treat his patient, there is no good faith at all. The two elements of consent on the part of the patient and of good faith on the part of the medical practitioner are inter-dependent and nobody can claim the benefit of this exception without good faith. Thus the appellant is not entitled to the exception given in Section 88. He was therefore rightly convicted under Sec. 302 I. P. C. The act was undoubtedly a very callous one because the treatment was repeated in spite of his recent experience in the case of Hiralal. However, the Sessions Judge has awarded the lesser penalty, and there is nothing more to be said in that regard.

33. The conviction and sentence are upheld and the appeal is dismissed.

34. M. A. RAZZAQUE, J. : I agree.

Appeal dismissed.