Topic: Juggankhan vs State of Madhya Pradesh

Juggankhan vs State of Madhya Pradesh
Equivalent citations: 1965 AIR 831, 1965 SCR (1) 14 - CITATION: 1965 AIR 831 1965 SCR (1) 14 - CITATOR INFO : D 1968 SC 829 (13) - DATE OF JUDGMENT: 10/08/1964

the accused, a registered Homoeopath, administered 24 drops of stramonium and a leaf of dhatura to the patient suffering from guinea worm. The accused had not studied the effect of such substances being administered to a human being. The poisonous contents of the leaf of dhatura, were not satisfactorily established by the prosecution. This Court (the Hon'ble Supreme Court) exonerated the accused of the charge under Section 302 IPC. However, on a finding that stramonium and dhatura leaves are poisonous and in no system of medicine, except perhaps Ayurvedic system, the dhatura leaf is given as cure for guinea worm, the act of the accused who prescribed poisonous material without studying their probable effect was held to be a rash and negligent act. It would be seen that the profession of a Homoeopath which the accused claimed to profess did not permit use of the substance administered to the patient. The accused had no knowledge of the effect of such substance being administered and yet he did so. In this background, the inference of the accused being guilty of rash and negligent act was drawn against him. On observation of this, The Hon'ble Supreme Court opines as ''In our opinion, the principle which emerges is that a doctor who administers a medicine known to or used in a particular branch of medical profession impliedly declares that he has knowledge of that branch of science and if he does not, in fact, possess that knowledge, he is prima facie acting with rashness or negligence

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

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


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-


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. 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- 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


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 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

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.